        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1329
KA 12-00684
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH J. PUGLIESE, DEFENDANT-APPELLANT.


JOHN HERBOWY, ROME, FOR DEFENDANT-APPELLANT.

JEFFREY S. CARPENTER, DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (Patrick L.
Kirk, J.), rendered November 10, 2011. The judgment convicted
defendant, upon his plea of guilty, of assault in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the amount of restitution
to $5,915.07 and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of assault in the third degree (Penal Law § 120.00) and
ordering him to pay restitution in the amount of $7,115.07, defendant
contends that County Court erred in failing to consider his ability to
pay restitution. Defendant failed to preserve that contention for our
review inasmuch as he “did not request a hearing on that issue or
otherwise object to the amount of restitution ordered on that basis”
(People v Naumowicz, 76 AD3d 747, 748; see People v Willis, 105 AD3d
1397, 1397, lv denied ___ NY3d ___ [Oct. 7, 2013]; People v Dillon, 90
AD3d 1468, 1468-1469, lv denied 19 NY3d 1025). In any event, the
record establishes that the court considered defendant’s ability to
pay restitution pursuant to Penal Law § 65.10 (2) (g) (see Dillon, 90
AD3d at 1469; Matter of Jessie GG., 190 AD2d 916, 917). The court
inquired at the restitution hearing about defendant’s employment
status and whether he had any dependents, and the presentence report
reviewed by the court detailed defendant’s educational background and
employment income (see Dillon, 90 AD3d at 1469).

     Defendant next contends that the People failed to meet their
burden of establishing the amount of restitution by a preponderance of
the evidence (see People v Tzitzikalakis, 8 NY3d 217, 221).
Specifically, defendant contends that the court erred in directing him
to make restitution for the business income and the value of the sick
leave that the victim allegedly lost as a result of the assault.
Contrary to the contention of defendant, we conclude that the People
                                 -2-                          1329
                                                         KA 12-00684

established the value of the sick leave through the victim’s testimony
at the restitution hearing and supporting documentation from the
victim’s employer and physician (see People v Wilson, 108 AD3d 1011,
1013; People v LaVilla, 87 AD3d 1369, 1370). We agree with defendant,
however, that the People failed to establish the amount of income, if
any, the victim lost from his auction business as a result of the
assault (see People v Wilson, 59 AD3d 807, 808-809). The
documentation in the record does not substantiate the victim’s claimed
loss of income and, indeed, the victim acknowledged that any lost
income from his business during the period of time at issue was purely
speculative (see id.). We therefore modify the judgment by reducing
the amount of restitution to $5,915.07.




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
