Opinion
2009-1360 OR CR.
Decided April 1, 2011.
Appeal from a sentence of the Justice Court of the Village of Tuxedo Park, Orange County (David L. Levinson, J.), imposed June 18, 2009. The sentence, insofar as appealed from as limited by the brief, required defendant to pay restitution in the sum of $44,500 upon his conviction of petit larceny.
ORDERED that the sentence, insofar as appealed from, is affirmed.
PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ.
Defendant pleaded guilty to one count of petit larceny (Penal Law § 155.25) and was promised a sentence which included, among other things, restitution in an amount to be determined at a restitution hearing. Following the restitution hearing, defendant was sentenced to probation and a fine, and was ordered to pay restitution in the sum of $44,500. The only issue raised on appeal is whether the amount awarded as restitution is supported by sufficient evidence.
Penal Law section 60.27 (1) authorizes a court to order, as part of a sentence imposed, that the defendant make reparation to the victim for the actual out-of-pocket loss caused by the defendant's violation. Whenever a court requires restitution or reparation to be made, it must make a finding as to the dollar amount of the fruits of the offense and for the actual out-of-pocket loss to the victim caused by the offense ( see Penal Law § 60.27; People v Consalvo, 89 NY2d 140, 144; People v Ayers, 45 AD3d 1290; People v Tzitzikalakis, 25 AD3d 404, 408, affd 8 NY3d 217). When a hearing is held to determine the amount of restitution, the "People bear the burden of proving, by a fair preponderance of the evidence, the facts in support of the restitution request to the satisfaction of the sentencing court" ( People v Horne, 97 NY2d 404, 410-411). In addition, "[a]ny relevant evidence is admissible unless privileged regardless of its admissibility under the rules of evidence" ( People v Consalvo, 89 NY2d at 145; see also CPL 400.30; People v Francis L.M., 278 AD2d 919; People v Chaulk, 192 AD2d 669). In order to establish the out-of-pocket loss in a simple larceny case, the victim may testify as to the value of the stolen property ( see People v Tzitzikalakis, 25 AD3d at 409).
Contrary to defendant's contention, the Justice Court was entitled to rely upon hearsay evidence in determining the complainant's out-of-pocket loss ( see CPL 400.30; People v Tzitzikalakis, 25 AD3d at 409; People v Francis L.M., 278 AD2d 919; People v Chaulk, 192 AD2d 669). In our view, the Justice Court's determination was supported by a preponderance of the evidence. As defendant's remaining contentions lack merit, the sentence, insofar as appealed from, is affirmed.
Nicolai, P.J., Molia and LaCava, JJ., concur.