People v. Consalvo, 89 N.Y.2d 140 (1996)
When a defendant pleads guilty and the sentencing court orders restitution, the court must follow specific statutory procedures to determine the amount of restitution, including providing the defendant with notice and an opportunity to be heard, unless the defendant explicitly conceded to the amount of loss during the plea allocution.
Summary
Consalvo, a podiatrist, pleaded guilty to grand larceny for improper Medicaid billings. The plea agreement required him to pay $500,000 in restitution. At sentencing, Consalvo, with new counsel, challenged the restitution amount. The court denied a hearing, relying on a statistician’s affidavit estimating higher damages. The New York Court of Appeals held that while the guilty plea was valid, the restitution determination was flawed because the court didn’t adhere to statutory procedures. The case was remitted for a hearing to properly determine the restitution amount, ensuring Consalvo had an opportunity to contest the evidence of loss.
Facts
Defendant Consalvo, a podiatrist, was indicted on charges of grand larceny, offering a false instrument for filing, and falsifying business records related to improper Medicaid billings between 1986 and 1992. He pleaded guilty to grand larceny in the fourth degree, satisfying the entire indictment. The plea agreement stipulated that Consalvo would pay $500,000 in restitution before sentencing.
Procedural History
After entering the guilty plea, Consalvo retained new attorneys who moved to vacate the plea or, alternatively, sought a hearing on the restitution amount. The trial court denied these motions. Before sentencing, the prosecutor submitted an affidavit from a statistician extrapolating damages of at least $571,552.37 based on six fraudulent claims. The trial court incorporated this affidavit into the record and sentenced Consalvo to six months’ incarceration, five years’ probation, and ordered him to pay $500,000 in restitution. The Appellate Division affirmed. The New York Court of Appeals then reviewed the case.
Issue(s)
Whether the trial court erred in determining the amount of restitution without providing the defendant with a hearing and an opportunity to contest the evidence, despite his guilty plea.
Holding
Yes, because the court failed to follow statutory procedures for determining the restitution amount, specifically Penal Law § 60.27 and CPL 400.30, which require a hearing and an opportunity for the defendant to challenge the evidence unless the defendant explicitly conceded the amount of loss during the plea allocution.
Court’s Reasoning
The Court of Appeals emphasized that Penal Law § 60.27 permits restitution to compensate victims for out-of-pocket losses, excluding pain and suffering or liquidated damages. The court noted that while ordering restitution is discretionary, the procedure for determining the amount is statutory. Specifically, if the record lacks sufficient evidence of the victim’s loss, the court must conduct a hearing, especially if the defendant requests one.
The Court found that the trial court’s reliance on unrecorded statements during plea negotiations and the statistician’s affidavit, without providing Consalvo an opportunity to challenge them, was insufficient. The court stated, “When defendant retained new attorneys in this case, they strenuously urged before sentencing that the restitution amount was not adequately supported by the record and sought a hearing. Under these circumstances, the court was required to grant a hearing pursuant to Penal Law § 60.27 (2) irrespective of the level of evidence in the record and to provide defendant with a reasonable opportunity to contest the People’s evidence or supply evidence on his own behalf.” While a defendant may concede facts supporting restitution during a plea, the guilty plea alone is insufficient to determine the restitution amount without such specific concessions.
The court emphasized the importance of following the procedures outlined in CPL 400.30, including providing notice of the hearing and allowing the defendant to present evidence. Because the trial court did not follow these procedures, the case was remitted for a proper hearing to determine the amount of restitution. The Court stressed that a failure to follow proper procedure deprives the defendant of the “‘essential nature’ of the right to be sentenced as provided by law”.