The People of the State of New York, Respondent, v. Donald Kelly, Appellant

The People of the State of New York, Respondent, v Donald Kelly, Appellant. [661 NYS2d 149] [MAJORITY] —Judgment unanimously affirmed. Memorandum: Defendant contends that County Court erred in ordering him to pay restitution without conducting a hearing. At sentencing, the court indicated that it was in possession of a receipt submitted by the victim regarding her out-of-pocket expenses in repairing damage to her house caused by defendant. Defense counsel agreed that the amount was "substantiated by the receipts” and declined the court’s offer to conduct a hearing. Thus, defendant conceded the facts necessary to establish the amount of restitution (see, People v Consalvo, 89 NY2d 140, 145; People v Serafini, 213 AD2d 1066, lv denied 85 NY2d 980; cf., People v Barnett, 237 AD2d 917) and did not seek the hearing that he was entitled to by law (see, People v Serafini, supra, at 1067; People v Lugo, 191 AD2d 648). We have considered the remaining contention of defendant and conclude that it is without merit. (Appeal from Judgment of Erie County Court, Drury, J.—Attempted Burglary, 2nd Degree.) Present—Denman, P. J., Green, Lawton, Balio and Fallon, JJ.