People v. Forness

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: We reject the contention of defendant that County Court erred in accepting his guilty plea without conducting a further inquiry to determine whether his assertions of innocence rendered his plea involuntary. Defendant made no statements at the plea and sentencing proceedings that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see, People v Lopez, 71 NY2d 662, 666). The court erred, however, in directing defendant to pay restitution based solely upon hearsay information in the probation report (see, People v Smith, 156 AD2d 1023, lv denied 75 NY2d 925; People v Cheatum, 148 AD2d 986, lv denied 74 NY2d 662; People v Dixon, 134 AD2d 877, 878). Although defendant agreed with the court that the amount of restitution was approximately $5,000, he did not agree to the exact amount of $5,037.47 ordered by the court. Defendant’s statements do not include “facts from which the victim’s actual out-of-pocket loss from the offense can be inferred” (People v Consalvo, 89 NY2d 140, 146), and there is no other proof in the record supporting the amount ordered by the court. Thus, we modify the judgment by vacating the award of restitution, and we remit the matter for a hearing to determine the amount of the victim’s actual loss. (Appeal from Judgment of Cattaraugus County Court, Himelein, J.—Grand Larceny, 4th Degree.) Present— Denman, P. J., Pine, Wisner, Balio and Boehm, JJ.