must conduct hearing in New York

2018Where, as here, defendant calls into question the validity of a postplea arrest, or involvement in the underlying crime, "the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation" ( People v Outley , 80 NY2d at 713 ; see People v Driscoll , 131 AD3d 766, 766-767 [2015], lv denied 27 NY3d 996 [2016]).

2014People v Outley ( 80 NY2d 702, 713 [1993]) held that in order for a court to impose an enhanced sentence, “the mere fact of the arrest, without more, is not enough.” Therefore, “[w]hen an issue is raised concerning the validity of the postplea charge or there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation” (id.). .

2024If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue" (Penal Law § 60.27 [2]; see People v Consalvo , 89 NY2d 140, 144-145 [1996]).

2023As the Court of Appeals stated in People v Consalvo ( 89 NY2d 140 ), Penal Law § 60.27(2) "provides that if the record contains the evidence necessary to support a finding of the victim's loss, usually after a trial in which evidence of pecuniary loss has necessarily been proved, the court may fix the amount of restitution based on that evidence," whereas "[i]f sufficient evidence does not appear in the record to support a finding of the victim's loss, then the court must conduct a hearing to determine the amount," and "[i]n either case, if the defendant requests a hearing, the court must cond

2019"It is irrelevant in [*2]such a situation that the defendant himself [or herself], or his [or her] attorney, seeks a finding of competency and expresses a willingness to proceed" ( People v Smart , 184 AD2d at 342 ). "[T]he Court of Appeals [has] stated that 'once the procedure mandated by CPL article 730 has been invoked, the defendant is entitled to a full and impartial determination of his [or her] mental capacity'" ( People v Mulholland , 129 AD2d 857, 858 [1987] [brackets omitted], quoting People v Armlin , 37 NY2d 167, 172 [1975]).

2017“That section is mandatory and not discretionary” (People v McCabe, 87 AD2d 852, 852 [1982]), and a plea of guilty cannot be accepted unless the requisite hearing is held and the defendant is found competent (see People v Armlin, 37 NY2d 167, 172 [1975]).

2014By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]; see People v Horne, 97 NY2d 404, 410 [2002]; People v Kim, 91 NY2d 407, 410 [1998]; People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]).

2014By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]; see People v Horne, 97 NY2d 404, 410 [2002]; People v Kim, 91 NY2d 407, 410 [1998]; People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]).

2017The CPL expressly provides that, “[w]hen the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion as to whether the defendant is or is not an incapacitated person, . . . the court must conduct a hearing to determine the issue of capacity” (CPL 730.30 [4] [emphasis added]; see People v Meurer, 184 AD2d 1067, 1068 [1992], lv dismissed 80 NY2d 835 [1992], lv denied 80 NY2d 907 [1992]).

2017The CPL expressly provides that, “[w]hen the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion as to whether the defendant is or is not an incapacitated person, . . . the court must conduct a hearing to determine the issue of capacity” (CPL 730.30 [4] [emphasis added]; see People v Meurer, 184 AD2d 1067, 1068 [1992], lv dismissed 80 NY2d 835 [1992], lv denied 80 NY2d 907 [1992]).

2014By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]; see People v Horne, 97 NY2d 404, 410 [2002]; People v Kim, 91 NY2d 407, 410 [1998]; People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]).

2014By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]; see People v Horne, 97 NY2d 404, 410 [2002]; People v Kim, 91 NY2d 407, 410 [1998]; People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]).

2013Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing (see People v Charles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498 [2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]).

2013Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing (see People v Charles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498 [2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]).

2025"That section is mandatory and not discretionary" ( People v McCabe , 87 AD2d 852, 852 ).

2017“That section is mandatory and not discretionary” (People v McCabe, 87 AD2d 852, 852 [1982]), and a plea of guilty cannot be accepted unless the requisite hearing is held and the defendant is found competent (see People v Armlin, 37 NY2d 167, 172 [1975]).

2013Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing (see People v Charles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498 [2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]).

2013Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing (see People v Charles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498 [2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]).

2023"Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing" ( People v Ward , 103 AD3d 925, 926 [emphasis added]).

2018If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law." Here, there was no showing as to how the court determined the amount of restitution ( see People v Myron , 28 AD3d 681, 684 [2006]; People v Melvin , 11 AD3d 639, 639 [2004]), and the record is devoid of any evidence to allow for an accurate determination the proper amount of restitution and the proper manner of payment ( see Penal Law § 60.27 [2];

2022"At a restitution hearing, the People bear the burden of proving the victim's out-of-pocket loss—the amount necessary to make the victim whole—by a preponderance of the evidence" ( People v Tzitzikalakis , 8 NY3d 217, 221 [2007]; see CPL 400.30 [4]).

2016Here, defendant requested a hearing and, thus, “the court was required to grant [one] pursuant to Penal Law § 60.27 (2),” at which the People would bear the burden of proof by a preponderance of the evidence and defendant would be “provide [d] . . . with a reasonable opportunity to contest the People’s evidence or supply evidence on his own behalf” (People v Consalvo, 89 NY2d 140, 146 [1996]; see Tzitzikalakis, 8 NY3d at 223 ).

2019Nevertheless, "before proceeding in the absence of a defendant who fails to appear, the court must conduct an inquiry into the reason for the absence and consider whether the defendant could be located within a reasonable period of time" ( People v Sassenscheid , 162 AD3d at 1109; see People v Parker , 57 NY2d at 142 ; People v Major , 68 AD3d at 1245 ).

2019Nevertheless, "before proceeding in the absence of a defendant who fails to appear, the court must conduct an inquiry into the reason for the absence and consider whether the defendant could be located within a reasonable period of time" ( People v Sassenscheid , 162 AD3d at 1109; see People v Parker , 57 NY2d at 142 ; People v Major , 68 AD3d at 1245 ).

2016As to defendant’s argument that County Court erred in ordering restitution without a hearing, Penal Law § 60.27 (1) provides that a “court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed.” Penal Law § 60.27 (2) further provides that “[w]henever the court requires restitution or reparation to be made, . . . upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in [CPL 400.30]” (see People v Connolly, 27 NY3d 355, 359 [2016]; compare Pe

2016As to defendant’s argument that County Court erred in ordering restitution without a hearing, Penal Law § 60.27 (1) provides that a “court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed.” Penal Law § 60.27 (2) further provides that “[w]henever the court requires restitution or reparation to be made, . . . upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in [CPL 400.30]” (see People v Connolly, 27 NY3d 355, 359 [2016]; compare Pe

2016As to defendant’s argument that County Court erred in ordering restitution without a hearing, Penal Law § 60.27 (1) provides that a “court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed.” Penal Law § 60.27 (2) further provides that “[w]henever the court requires restitution or reparation to be made, . . . upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in [CPL 400.30]” (see People v Connolly, 27 NY3d 355, 359 [2016]; compare Pe

2016As to defendant’s argument that County Court erred in ordering restitution without a hearing, Penal Law § 60.27 (1) provides that a “court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed.” Penal Law § 60.27 (2) further provides that “[w]henever the court requires restitution or reparation to be made, . . . upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in [CPL 400.30]” (see People v Connolly, 27 NY3d 355, 359 [2016]; compare Pe

2014By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]; see People v Horne, 97 NY2d 404, 410 [2002]; People v Kim, 91 NY2d 407, 410 [1998]; People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]).

2014By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]; see People v Horne, 97 NY2d 404, 410 [2002]; People v Kim, 91 NY2d 407, 410 [1998]; People v Stevens, 80 AD3d 791, 792 [2011], lv denied 16 NY3d 900 [2011]).

2013Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing (see People v Charles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498 [2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]).

2013Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing (see People v Charles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498 [2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]).

2000“When the record is insufficient to support a finding as to the amount of loss caused by an offense, ‘the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law’ (Penal Law § 60.27 [2])” (People v Dixon, 134 AD2d 877, 878 ; see also, People v Wilson, 275 AD2d 1035 ; People v Barton, 259 AD2d 989 ).

1989If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law.” Thus, not only did the trial court fail to carry out its promise at the plea proceeding, but it did not conform to the mandates of the applicable statute which requires a restitution hearing whenever the record contains inadequate information regarding the means by which the amount of restitution is to be ascertained and how each defendant is expec

2008If the party seeking modification of his or her maintenance or child support obligations presents genuine issues of fact regarding his or her entitlement to a downward modification, then the court must conduct a hearing to determine whether modification is warranted (see Miller v Miller, 18 AD3d 629, 630 [2005]; Soba v Soba, 213 AD2d 472, 473 [1995]).

2005The court must conduct a hearing to determine whether modification is warranted only when the allegations of the party seeking modification present genuine issues of fact (see Young v Young, 223 AD2d 358 [1996]; Soba v Soba, 213 AD2d 472 [1995] ).

2005Absent a prima facie case establishing entitlement to a downward modification, the party seeking modification has no right to a hearing (see Mishrick v Mishrick, supra; Lloyd v Lloyd, 226 AD2d 816 [1996]; Zinkiewicz v Zinkiewicz, 222 AD2d 684, 685 [1995]).

1998Absent a prima facie case establishing entitlement to a downward modification, the applicant has no right to a hearing (see, Lloyd v Lloyd, 226 AD2d 816 ; Matter of Zinkiewicz v Zinkiewicz, 222 AD2d 684, 685 ).

1988Where the record is insufficient to support a finding of the proper amount of restitution, "the court must conduct a hearing” (Penal Law § 60.27 [2]). " 'Because defendant was convicted on his plea of guilty, there was no proof developed as to the amount of loss sustained’ ” (People v Millar, supra, at 1032 ; People v Dixon, supra).

1988Where the record is insufficient to support a finding as to the proper amount of restitution, "the court must conduct a hearing” (Penal Law § 60.27 [2]; People v Bentivegna, 145 AD2d 899 ; People v Millar, 144 AD2d 1032 ; People v Dixon, 134 AD2d 877, 878 ). " 'Because defendant was convicted on his plea of guilty, there was no proof developed as to the amount of loss sustained’ ” (People v Millar, supra, at 1032; People v Dixon, supra).

2026B. "[O]nce a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision" ( People v Bing , 76 NY2d 331, 337-338 [1990]).

2026B. "[O]nce a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision" ( People v Bing , 76 NY2d 331, 337-338 [1990]).

2026Although there is a split among the Appellate Division departments on this issue, the First and Third Department correctly apply our rule, holding that a court must conduct an inquiry if it appears at sentencing that the defendant does not understand their charge or the consequences of the plea ( see Gresham , 151 AD3d at 1178 ["(T)he Court of Appeals has recognized that a defendant may negate an element of the crime to which a plea has been entered or make a statement suggestive of an involuntary plea at post-plea proceedings, including sentencing , which may require the trial court to then c

2026Although there is a split among the Appellate Division departments on this issue, the First and Third Department correctly apply our rule, holding that a court must conduct an inquiry if it appears at sentencing that the defendant does not understand their charge or the consequences of the plea ( see Gresham , 151 AD3d at 1178 ["(T)he Court of Appeals has recognized that a defendant may negate an element of the crime to which a plea has been entered or make a statement suggestive of an involuntary plea at post-plea proceedings, including sentencing , which may require the trial court to then c

2025In the event issues of fact arise in connection with the potential appointment of a GAL, the Court must conduct a hearing ( see , Piggot v. Lifespire , 149 AD3d 785 [2d Dept 2017]); see also, Shad v. Shad , 167 AD2d 532 [2d Dept. 1990]).