Opinion
February 18, 1992
Appeal from the County Court, Nassau County (Wexner, J.).
Ordered that the judgment, as amended, is modified, on the law and as a matter of discretion in the interest of justice, by deleting the provisions thereof concerning restitution; as so modified, the judgment, as amended, is affirmed, and the matter is remitted to County Court, Nassau County, for a hearing and new determination concerning the proper amount of restitution and the manner of payment thereof.
Having accepted the bargained-for plea, the defendant forfeited the right to challenge the factual basis for that plea (see, People v. Pelchat, 62 N.Y.2d 97, 108; People v. Riley, 120 A.D.2d 752). The County Court should have, but failed to, fix the amount and terms of restitution at the time it pronounced the sentence of which restitution was to be a part (see, Penal Law § 60.27, [2]; see also, CPL 380.30; and see, People v. Bentivegna, 145 A.D.2d 899; cf., People v. Fuller, 57 N.Y.2d 152). However, the court's improper deferral of restitution issues did not work to deprive it of jurisdiction to thereafter impose restitution as it had announced it would do at sentencing (see, e.g., People v Bentivegna, supra; cf., People ex rel. Harty v. Fay, 10 N.Y.2d 374). The County Court did not, however, properly fix restitution.
We conclude that, as a matter of law, a hearing with respect to the proper amount of restitution is warranted (see, People v Kade, 153 A.D.2d 907). Review of a repair bill, and the reluctant consent of the defendant, who stated he was unable to make restitution (cf., CPL 420.10), to entry of a civil judgment (but see, CPL 420.10; cf., CPL 420.10) do not provide an adequate basis for determining the amount of loss caused by the defendant's crime (see, Penal Law § 60.27; People v Mela, 172 A.D.2d 630; People v. Millar, 144 A.D.2d 1032; cf., People v. Kelsky, 144 A.D.2d 386) or defeat the "'essential nature' of [defendant's] * * * right to be sentenced as provided by law" (People v. Fuller, supra, at 156, quoting from People v Craig, 295 N.Y. 116, 120; People v. Bentivegna, supra; People v Clougher, 95 A.D.2d 860). The matter is accordingly remitted to the County Court, Nassau County so that a hearing may be conducted with regard to the amount of restitution and the manner of payment (see, People v. Walker, 140 A.D.2d 655).
We have considered defendant's claim of ineffective assistance of counsel and find it to be unsupported by the record (see, People v. Brown, 45 N.Y.2d 852). Bracken, J.P., Harwood, Balletta and Copertino, JJ., concur.