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Prior Restitution Hearing Does Not Cause Reversible Error Where Defendant Had Reasonable Opportunity To Contest The People’s Evidence And Submit His Own Proof


Prior Restitution Hearing Does Not Cause Reversible Error Where Defendant Had Reasonable Opportunity To Contest The People’s Evidence And Submit His Own Proof

New York Court of Appeals

People v Connolly

2016 NY Slip Op 03651

Decided May 10th, 2016

Issue: Whether the trial court erred when it introduced, at defendant’s second restitution hearing, transcripts and exhibits from a prior hearing conducted by a Judicial Hearing Officer and whether that was sufficient enough to comport with Penal Law 6027 (2) and CPL 400.30.

Holding:The Court of Appeals held that they reject the defendant’s argument that, where restitution hearing is required, the sentencing court commits reversible error when it relies upon a transcript of a hearing before a different fact-finder without taking live testimony. The People satisfied their burden of proof by a preponderance of the evidence.

restitutionPenal Law 60.27(1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to make restitution of the fruits of his of her offense or reparation for the actual out-of-pocket loss caused thereby, People v Horne, 97 NY2d 404, 410 [2002]. The Court of Appeals has recognized that New York has long-standing policy of promoting, encouraging and facilitating the use of restitution to reimburse victims for monetary and other losses caused by criminal conduct, People v Kim, 91 NY2d 407, 411 [1998] and that the Penal Law has a presumption in favor of restitution, Horne, 97 NY2d at 411-412; People v Tzitzikalakis, 8 NY3d 217, 220 [2007].

In that regard, section 60.27 (2) states that if the record does not contain sufficient evidence to support a finding of the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim, or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in CPL 400.30. Nothing in the statutory text requires a formal evidentiary hearing.

Facts: Defendant was charged in an indictment with attempted arson in the second degree, menacing a police officer, criminal possession of a weapon in the third degree and attempted assault in the first degree. Defendant allegedly broke into his girlfriend’s apartment and threatened to kill her, swung a knife at a police officer who attempted to enter the apartment through a broken window, threatened to slit the responding officers throat if they came into the apartment, broke windows and threw things out the windows at the officers, threatened to hang himself with a dog leash, and set fires inside the residence. In March 2009, the defendant pleaded guilty to attempted assault in the first degree and arson in the third degree.exhibits

Defendant was sentenced, as a second felony offender, to an aggregate term of eight years in prison to be followed by five years of postrelease supervision. The issue of restitution was severed for a fact-finding hearing and, over defendant’s objection, that hearing was held before a JHO (Judicial Hearing Officer). The People presented multiple exhibits including insurance documents, receipts, photographs, appraisals and a police incident report together with the testimony of an insurance adjuster, showing that the owner of the damaged apartment received. Defendant presented the testimony of his former girlfriend that the owner caused additional damage to the apartments windows in order to obtain extra insurance money.

The JHO concluded that defendant should be required to pay restitution to the insurer. Defendant appealed, and the People both conceded that County Court had erred by delegating its authority to conduct the restitution hearing to a JHO and consented to a remittal to County Court for a new hearing.

The Appellate Division modified and remitted, 100 AD3d 1419, 1419, [4th Dept 2012]. When the parties appeared before County Court on remittal, the People indicated that they intended to offer into evidence the transcript of the prior hearing conducted by the JHO, and then rest.

Defendant argued that he was entitled to a hearing de novo and that the introduction of the transcript was not sufficient to meet the Peoples burden of proof. The court rejected defendant’s argument and told defense counsel he was free to subpoena witnesses, call his client and then the court adjourned the matter to enable defendant to prepare for witnesses.

At the next County Court appearance, the People submitted the transcript and exhibits from the hearing before the JHO. Defendant did not offer and proof but argued that amount of damages claimed by the adjuster was not supported by the evidence. County Court held that the People satisfied their burden of producing proof to establish by a preponderance of the evidence. The Appellate Division affirmed and a Judge of the Court of Appeals granted defendant leave to appeal where the Court rejected defendant’s argument that, where a restitution hearing is required, the sentencing court commits reversible error when it relied upon a transcript of a hearing before a different fact-finder without taking live testimony and affirmed the Appellate Division’s order.

judge gavel and money isolated on white background.

Legal Analysis: The Court of Appeals has recognized that New York has long-standing policy of promoting, encouraging and facilitating the use of restitution to reimburse victims for monetary and other losses caused by criminal conduct, People v Kim, 91 NY2d 407, 411 [1998] and that the Penal Law has a presumption in favor of restitution, Horne, 97 NY2d at 411-412; People v Tzitzikalakis, 8 NY3d 217, 220 [2007].

Penal Law 60.27 (2) emphatically advises that it is the court, which is to conduct any hearing thought necessary for this purpose, People v Fuller, 57 NY2d 152, 158 [1982], the court is not restricted to reliance upon only competent evidence,?Kim, 91 NY2d at 411. Rather CPL 400.30 embodies a liberal evidentiary standard ,?Tizitzikalakis,?8 NY3d at 233 and provides that any relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence. That is, even where the record does not contain sufficient evidence to support such finding, or the defendant has requested a hearing, nothing in the statutory text requires a formal evidentiary hearing. In that regard, section 60.27 (2) states that if the record does not contain sufficient evidence to support a finding of the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim, or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in CPL 400.30.

Here, defendant requested a hearing and, thus, the court was required to grant one pursuant to Penal Law 6027 (2), at which the People would bear the burden of proof by a preponderance of the evidence and defendant would be provided with a reasonable opportunity to contest the People’s evidence or supply evidence on his own behalf, People v Consalvo, 89 NY2d 140, 146 [1996]; Tzitzikalakis, 8 NY3d at 223). While Penal Law 60.27 (2) emphatically advises that it is the court which is to conduct any hearing thought necessary for this purpose, People v Fuller, 57 NY2d 152, 158 [1982], the court is not restricted to reliance upon only competent evidence, Kim, 91 NY2d at 411.

Here, defendant was given that opportunity not only did he cross-examine the People’s witnesses and put his own witness on the stand at the initial hearing before the Judicial Hearing Officer (JHO), but County Court offered him the opportunity to call witnesses or put in proof during the second hearing, as well. Nor is there any indication that the trial court shifted the burden of proof to defendant, as he argues. The People chose to meet their burden by submitting the transcript of the prior hearing and resubmitting the exhibits proffered at that hearing. Ultimately, defendant chose to rely on that same evidence.

The Court of Appeals has held that it is entirely permissible for the trial court to request that a third party, such as a Probation Department, ascertain relevant facts and submit its recommendations in a written report, so long as in the end it is the court, which alone imposes the sentence, that decides how much of the report, if any, to adopt and how much to reject, Fuller, 57 NY2d at 158-159.exhibitss

Here inasmuch as County Court, alone, determined the proper amount of restitution based upon relevant evidence not legally privileged, and after affording defendant a reasonable opportunity to contest the People’s evidence and submit his own proof, the hearing held upon remittal met the standard set forth in the Courts prior cases.

Accordingly, the order of the Appellate Division should be affirmed.


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