HOOTEN, ROY, PEOPLE v ( 2011 )


Menu:
  •          SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1605
    KA 09-02125
    PRESENT: MARTOCHE, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    ROY HOOTEN, ALSO KNOWN AS ROY D. HOOTEN,
    DEFENDANT-APPELLANT.
    (APPEAL NO. 1.)
    GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Genesee County Court (Robert C.
    Noonan, J.), rendered July 13, 2009. The judgment ordered defendant
    to pay restitution in the amount of $20,841.08.
    It is hereby ORDERED that said appeal from the judgment insofar
    as it imposes a sentence of incarceration is unanimously dismissed and
    the judgment is otherwise modified on the law by vacating the amount
    of restitution ordered and ordering defendant to pay restitution in
    the amount of $19,516.77 and as modified the judgment is affirmed.
    Memorandum: In appeal No. 2, defendant appeals from a judgment
    convicting him upon his plea of guilty of attempted burglary in the
    third degree (Penal Law §§ 110.00, 140.20) and imposing a sentence of
    incarceration and, in appeal No. 1, he appeals from a judgment that
    again imposes the identical sentence of incarceration and further
    orders him to pay restitution in the amount of $20,841.08. Addressing
    first appeal No. 2, we note that defendant’s sole contention is that
    the sentence is unduly harsh and severe, and we reject that
    contention. We agree with defendant in appeal No. 1, however, that
    the certificate of conviction reflects an amount of restitution that
    conflicts with the amount to which defendant stipulated. At the
    restitution hearing, County Court indicated that one of the
    restitution claims had been withdrawn, reducing the total amount of
    restitution requested by the People. Defense counsel then indicated
    that defendant was prepared to stipulate to restitution in the amount
    of $18,587.40, based on the remaining claims, together with the 5%
    surcharge of $929.37, for a total restitution figure of $19,516.77.
    The People agreed to that amount and the court accepted the
    stipulation. We therefore modify the judgment in appeal No. 1 by
    vacating the amount of restitution ordered and ordering defendant to
    -2-                          1605
    KA 09-02125
    pay restitution in the amount of $19,516.77 in accordance with the
    stipulation. We dismiss the appeal from the judgment in appeal No. 1
    insofar as it imposes a sentence of incarceration inasmuch as we have
    addressed that issue in appeal No. 2.
    Entered:   February 10, 2011                    Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: KA 09-02125

Filed Date: 2/10/2011

Precedential Status: Precedential

Modified Date: 10/8/2016