People v. Gkanios , 605 N.Y.S.2d 942 ( 1993 )

Appeal by the defendant from a judgment of the County Court, Westchester County (Silverman, J.), rendered June 22, 1992, convicting him of rape in the first degree, rape in the second degree, sodomy in the first degree, and sodomy in the second degree, upon his plea of guilty, and imposing three concurrent terms of 2 to 6 years imprisonment and restitution in an amount not to exceed $10,000.

Ordered that the judgment is modified, on the law, and as a matter of discretion in the interest of justice, by deleting the provision in the sentence directing the defendant to make restitution in an amount not to exceed $10,000; as so modified, the judgment is affirmed.

Contrary to the defendant’s contentions, the record supports a finding that he entered his plea knowingly and voluntarily (see, People v Harris, 61 NY2d 9). Accordingly, the court did not improvidently exercise its discretion in denying the defendant’s motion to withdraw his plea of guilty (see, People v Kade, 153 AD2d 907, 908). However, the People concede, and we agree, that the restitution provision should be vacated because the victim never incurred any out-of-pocket costs. The express purpose of the restitution provision was to defray the cost of any counseling expenses which the victim might incur in the future. Thereafter, the victim apparently failed to seek counseling. Accordingly, there is no need for restitution. Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.