In New York, a court may impose restitution as a component of sentence, in addition to the more commonly understood penalties of jail time, community service, orders of protection, and so on. Section 60.27 of the New York State Penal Law permits a sentencing court to order restitution to the victim of the crime in addition to any other dispositions authorized by statute, meaning it can be tacked on to any other type of sentence. Restitution on criminal charges may not include sums for pain and suffering or liquidated damages, as in civil cases, and it may not be greater than what is necessary to compensate the victim of a crime for out-of-pocket losses. All of this can be a part of a disposition or plea involving Grand Larceny and Criminal Possession of Stolen Property crimes and, as such, it is something that you and your criminal defense lawyer should work through before resolving your case.
Typically, if restitution is part of a sentence, it will be part of a negotiated plea whereby the prosecutor and criminal defense attorney have looked into the financial loss, exchanged documents and other confirmation of the amount, and arrived at an agreed-upon figure. However, when restitution is being ordered by a judge as part of a sentence, after a trial for example, the procedure for fixing the amount are set forth in section 60.27(2) of the Penal Law. Essentially, there must be admissible evidence before the Court to support a finding of the victim’s financial loss. This evidence could come from testimony or documentary evidence that was presented at the trial, or a post-trial hearing held specifically to address the issue of restitution. It is important to note that if the defendant requests a hearing regarding the amount of restitution, the defendant is entitled to one and the Court must conduct such a hearing. At such a hearing, the prosecution has the burden of proving the amount of restitution by a preponderance of the evidence (a lower standard that the beyond a reasonable doubt standard used at the trial).
In People v Consalvo, 89 NY2d 140 (1996), the Court of Appeals considered a trial court’s failure to hold such a hearing after it was requested by the defendant, as well as the lack of necessary evidence supporting the finding that the State of New York had had losses of at least $500,000 due to the defendant’s fraudulent Medicaid billing. As in Consalvo, restitution can often be the most significant component of a sentence, even where a jail sentence is also imposed. Because cases involving these amounts of money are relatively rare, it is easy for a Court, a prosecutor, or a criminal defense attorney to fail to assert and protect the defendant’s rights in this area. When restitution is at issue, an accused person has the right to confront the evidence against them with regard to the amount of restitution, and should utilize that right to the fullest even if it comes second to challenging the initial arrest and indictment for Grand Larceny or a felony Criminal Possession of Stolen Property.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in criminal cases involving restitution throughout the New York City and Hudson Valley region.