Opinion
2014-01-3
The PEOPLE of the State of New York, Respondent, v. Joseph J. PUGLIESE, Defendant–Appellant.
John Herbowy, Rome, for Defendant–Appellant. Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
John Herbowy, Rome, for Defendant–Appellant. Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI AND VALENTINO, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of assault in the third degree (Penal Law § 120.00) and ordering him to pay restitution in the amount of $7,115.07, defendant contends that County Court erred in failing to consider his ability to pay restitution. Defendant failed to preserve that contention for our review inasmuch as he “did not request a hearing on that issue or otherwise object to the amount of restitution ordered on that basis” (People v. Naumowicz, 76 A.D.3d 747, 748, 907 N.Y.S.2d 353; see People v. Willis, 105 A.D.3d 1397, 1397, 963 N.Y.S.2d 894, lv. denied22 N.Y.3d 960, 977 N.Y.S.2d 190, 999 N.E.2d 555 [Oct. 7, 2013]; People v. Dillon, 90 A.D.3d 1468, 1468–1469, 935 N.Y.S.2d 390, lv. denied19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110). In any event, the record establishes that the court considered defendant's ability to pay restitution pursuant to Penal Law § 65.10(2)(g) ( see Dillon, 90 A.D.3d at 1469, 935 N.Y.S.2d 390; Matter of Jessie GG., 190 A.D.2d 916, 917, 593 N.Y.S.2d 375). The court inquired at the restitution hearing about defendant's employment status and whether he had any dependents, and the presentence report reviewed by the court detailed defendant's educational background and employment income ( see Dillon, 90 A.D.3d at 1469, 935 N.Y.S.2d 390).
Defendant next contends that the People failed to meet their burden of establishing the amount of restitution by a preponderance of the evidence ( see People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44). Specifically, defendant contends that the court erred in directing him to make restitution for the business income and the value of the sick leave that the victim allegedly lost as a result of the assault. Contrary to the contention of defendant, we conclude that the People established the value of the sick leave through the victim's testimony at the restitution hearing and supporting documentation from the victim's employer and physician ( see People v. Wilson, 108 A.D.3d 1011, 1013, 968 N.Y.S.2d 300; People v. LaVilla, 87 A.D.3d 1369, 1370, 930 N.Y.S.2d 344). We agree with defendant, however, that the People failed to establish the amount of income, if any, the victim lost from his auction business as a result of the assault ( see People v. Wilson, 59 A.D.3d 807, 808–809, 872 N.Y.S.2d 758). The documentation in the record does not substantiate the victim's claimed loss of income and, indeed, the victim acknowledged that any lost income from his business during the period of time at issue was purely speculative ( see id.). We therefore modify the judgment by reducing the amount of restitution to $5,915.07.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the amount of restitution to $5,915.07 and as modified the judgment is affirmed.