Challenging Restitution in a New York Theft Case: NY PL 60.27 and the Restitution Hearing

Where a defendant is to plead guilty or in fact accepts responsibility for an arrest involving a Grand Larceny crime in New York, there is often an amount of restitution that prosecutors attempt to secure as part of a negotiated plea. No, the District Attorney is not mandated or required to make a victim of a Scheme to Defraud, Grand Larceny or other theft whole, but it is common for prosecutors to proactively secure as much of the monies possible and for defendants to make that payment in advance or in the future as part of the disposition. Where a theft, by embezzlement or any other scheme, is charged as Fourth Degree Grand Larceny (New York Penal Law 155.30), Third Degree Grand Larceny (New York Penal Law 155.35), or Second Degree Grand Larceny (New York Penal Law 155.40), there will almost always be a component of restitution up front if the accused has the means. Why? Barring the monies or property being returned, the crimes themselves reflect a wrongful taking of in excess of $1,000.00, $3,000.00 or $50,000.00 respectively. In the event the offense charged is greater than $1 million, then a conviction for First Degree Grand Larceny (New York Penal Law 155.42) will have the added issue of mandatory state prison with a minimum of a one to three year sentence and a maximum of eight and one third to twenty five. Simply, these thefts involve property or money with significant value and the DA will not turn a blind eye to a victim’s loss.

While the purpose of this blog is not to address the specific crimes involving Grand Larceny, Criminal Possession of Stolen Property or Scheme to Defraud, the issue here is to identify what your right is to challenge the amount you are claimed to have stolen even if you accept responsibility and plead guilty. If you admit to stealing in excess of $50,000.00, for example, because the prosecution claims the amount is $250,000.00 does that mean you must simply acquiesce to this value and you will be responsible for those dollars one way or another?

The law is very clear when determining how a court sets restitution. Pursuant to New York Penal Law 60.27(2):

“Whenever the court requires restitution or reparation to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing…”

In practical terms, if the evidence does not support a certain dollar or value amount the accused can ask for a hearing to make the determination. This finding does not mean the person is not guilty of the offense pleaded to (I guess if the dollar amount was $50,000.00 instead of the extra penny it could), but sets the correct restitution so that a defendant is not on the hook to pay back hundreds, tens of thousands or even more dollars not taken or lost.

In People v.Drinkwine, 2016 NY Slip Op 6097 (2nd Dept. 2016), the defendant appealed from his plea to First Degree Scheme to Defraud (NY PL 190.65) and Third Degree Grand Larceny (NY PL 155.35). As part of his plea he was required to pay restitution to two victims respectively in the amount of $3,400.00 and $167,200.00. Although he pleaded, the defendant protested the amount he was required to repay and the court went forward with the sentencing. The challenge made by the defendant was not to the plea, but that the court should have held a hearing so that the accurate amount of restitution was ascertained.

According to the Court the case should be sent back to determine the restitution owed because “[b]efore a defendant may be directed to pay restitution, a hearing must be held if either: (1) the defendant objects to the amount of restitution and the record is insufficient to establish the proper amount; or (2) the defendant requests a hearing” (People v Morrishill, 127 AD3d 993, 994; see Penal Law § 60.27[2]; People v Consalvo, 89 NY2d 140, 145-146). “This procedure must be followed even if the plea agreement contains a provision for a specific amount of restitution” (People v Morrishill, 127 AD3d at 994).

While restitution is intertwined with theft and larceny cases, there is often an agreement in advance as to what is owed. The larger the number and the more complicated the scheme, however, the greater the likelihood that an accused may be willing to take responsibility, but not for the entire amount claimed. If the record does not support prosecutors’ claims, an accused and his criminal defense lawyer can seek a hearing. In the right case, this can mean the difference between resolving a criminal allegation upon walking out of the courtroom or being saddled with debt years after your sentence becomes a distant memory.

Take the time to learn more about New York theft and larceny crimes and review the NewYorkTheftAndLarcenyLawyersBlog.Com or Saland Law PC’s other blog and websites linked below. A New York criminal defense law practice, the founding New York criminal lawyers at Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office before starting the law firm.