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THE PEOPLE &C., RESPONDENT, v. JACOB KIM, APPELLANT.

91 N.Y.2d 407, 694 N.E.2d 421, 671 N.Y.S.2d 420 (1998).
March 26, 1998

2 No. 22

[98 NY Int. 0017]
Decided March 26, 1998


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Submitted by Michael O'Brien, for appellant.
Noreen Healey, for respondent.

LEVINE, J.:

Defendant pleaded guilty to counts of attempted murderin the second degree, attempted robbery in the first degree and criminal possession of a weapon in the first degree. The charges arose out of a failed hold up by him and two accomplices at the

home of the victim, whom defendant shot three times in a struggle during the incident. County Court convicted defendant upon his guilty plea and the Appellate Division affirmed the judgment of conviction and sentence (232 AD2d 426). A Judge of this Court granted defendant leave to appeal, and we now affirm.

On this appeal, the primary issues raised by defendant relate to his challenge to the order of restitution imposed by County Court at the time of his sentencing, in the sum of $37,754.07, representing the aggregate amount of the victim's medical expenses incurred in the treatment of his gunshot wounds. Defendant's initial objection to the order of restitution is that the court erred in failing to hold a hearing to determine the actual amount of "out of pocket loss" in medical costs (Penal Law § 60.27[2], [5][b]). [n.*] We disagree. Defendant did not request a hearing on the dollar amount of the victim's medical expenses. The statute mandates conducting a hearing only "i[f] the record does not contain sufficient evidence to supportsuch a finding [of the actual amount of loss] or upon request by the defendant" (Penal Law § 60.27[2] [emphasis supplied]; see, People v Consalvo, 89 NY2d 140, 144).

The pre sentence probation report, made available to the defense in advance of sentencing, recited documented, itemized by provider medical expenses aggregating $37,754.07, of which the victim's health insurer paid $35,301.35. In the sentencing colloquy concerning restitution, defendant's attorney indicated to the court that there was no dispute over the accuracy of the amount of the victim's medical expenses set forth in the pre sentence report. Rather, the objections were merely (1) to "defendant having to reimburse the insurance company" for that portion of medical expenses paid by the victim's health insurer, and (2) that defendant only should be "responsible for one third of that amount," in light of the convictions and sentences, including restitution orders, of his two accomplices.

In our view, the pre sentence report's detailed itemization of documented medical costs incurred by the victim in the course of receiving treatment from named health providers, together with defendant's express and implied concessions of the accuracy and authenticity of those figures, afforded the court a sufficient evidentiary basis in the record for determining the actual amount of the victim's out of pocket loss without conducting a further hearing. Thus, the requirements of Penal Law § 60.27(2) were satisfied. We held in Consalvo that adefendant's concessions in the course of a plea allocution may furnish "the facts necessary to establish the amount of restitution" ( People v Consalvo, 89 NY2d, at 145, supra).

Moreover, had a restitution hearing been held, the court would not have been restricted to reliance upon only competent evidence ( see, Penal Law § 60.27[2] [incorporating the procedures for determining the amount of a fine under CPL 400.30]; see, CPL 400.30[4]; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 400.30, at 318). Thus, here, the court had before it undisputed, detailed evidentiary facts to establish the amount of loss, not merely a conclusory admission in response to the recital by the court of an unsubstantiated amount of restitution in the plea or sentencing minutes ( cf., People v Consalvo, supra, 89 NY2d, at 146).

Alternatively, defendant contends that the court erred in imposing a duty to make restitution for the portion of the victim's medical expenses paid by his health insurer. This argument also is unavailing. The statute authorizes restitution in "reparation for the actual out of pocket loss caused" by the criminal offense (Penal Law § 60.27[1] [emphasis supplied]). It also includes within the definition of "victim" a crime victim's "representative" (Penal Law § 60.27[4][b]) as defined in Executive Law § 621(6)( id.). Section 621(b) broadly defines a crime victim's representative to include "but not [be] limited to an agent, assignee, * * * a receiver, an administrator * * *"(Executive Law § 621[6]).

In light of the strong legislative policy favoring restitution for all actual monetary losses caused by criminal conduct ( see, People v Hall Wilson, 69 NY2d 154, 157), an insurer's payment of an injured crime victim's medical expenses is sufficient to bring the insurer within the category of representatives of the victim that are eligible for receipt of restitution. Moreover, the insurer was legally obligated under its insurance contract to pay for the victim's medical expenses for treatment of injuries caused by defendant's crimes and, as such, can properly be classified as a victim in its own right for those out of pocket losses occasioned thereby ( see, People v Cruz, 81 NY2d 996, 997 998; People v Hall Wilson, supra, 69 NY2d, at 157 158).

We likewise find unpersuasive defendant's remaining assignment of error regarding the restitution order that the court should not have imposed joint and several liability for the full amount of medical expenses, but should have divided that amount equally among defendant and his accomplices. While the statute is silent on the issue, imposing joint and several liability on all perpetrators for the entire loss of the victim caused by their concerted action is more consistent with, and better promotes, the dual purposes of the restitution statute. Those goals are to insure, to the maximum extent possible, that victims will be made whole and offenders will be rehabilitatedand deterred, by requiring all defendants to confront concretely, and take responsibility for, the entire harm resulting from their acts ( see, People v Hall Wilson, supra, 69 NY2d, at 157; People v Turco, 130 AD2d 785, 786).

Furthermore, imposing joint and several responsibility on all defendants for the entire amount of restitution is consistent with well established tort principles of liability pertaining to actors in concert, whether or not their conduct rose to the level of culpability justifying criminal sanctions ( see, Prosser and Keaton, Torts § 52, at 346 [5th ed]).

Defendant's final contention, that he was denied effective assistance of counsel, is based either on pure speculation or upon matters dehors the record beyond review on this appeal.

Accordingly, the order of the Appellate Division should be affirmed.

* * * * * * * * * * * * * * * * * Order affirmed. Opinion by Judge Levine. Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Ciparick and Wesley concur.

Decided March 26, 1998