Calendar Date: April 24, 2018Before: Lynch, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.__________Dominic J. Cornelius, Public Defender, Hudson (JessicaHowser of counsel), for appellant.Paul Czajka, District Attorney, Hudson (Joyce Crawford ofcounsel), for respondent.__________Mulvey, J.Appeal from a judgment of the County Court of ColumbiaCounty (Koweek, J.), rendered March 1, 2016, convicting defendantupon his plea of guilty of the crime of grand larceny in thethird degree.Defendant, a pastor at a Baptist church, pleaded guilty toan indictment charging him with grand larceny in the thirddegree. County Court sentenced defendant to six months in jailand five years of probation, and, following a restitutionhearing, ordered, among other things, that defendant payrestitution in the amount of $256,488.75. Defendant appeals,challenging the restitution award.We are unpersuaded by defendant’s contention that theamount of restitution ordered for the loss sustained by thechurch is unsupported by the record. Allene Sterritt, who becamethe financial secretary of the church upon defendant’sresignation, testified that defendant eliminated any financialoversight by church trustees during his 18-year tenure as pastor.Following defendant’s resignation as pastor, Sterritt attemptedto reconcile the church’s finances and noticed numerousdiscrepancies. Because there were no receipts or other recordswith regard to the church finances during defendant’s tenure, anaudit was undertaken with the assistance of an accounting firm,and a voluminous compilation of church checks and bank statementswas compiled and analyzed for the period of 2010 through 2014.In addition to a $40,000 commercial loan, the audit alsodisclosed cash withdrawals and checks payable to eitherdefendant, his wife or cash with no notation or receipts tovalidate a legitimate church purpose. Further, numerous paymentswere made to various credit card and retail establishments which,according to testimony at the hearing, were for personal expensesthat would not otherwise be authorized by the church. Therecords reflect that other expenses paid through the churchaccount included payments for various personal expenses, such ascollection accounts and a vehicle for defendant’s wife, whichwere for the benefit of defendant and his wife and not for thechurch purposes. Michael Castle, a State Police investigator whoassisted with the investigation of the church finances, testifiedthat defendant and defendant’s wife admitted to misappropriatingapproximately $70,000 for personal expenses.Contrary to defendant’s contention, we find that CountyCourt was free to credit the testimony and documentationpresented by the People and that the loss incurred wasestablished by a preponderance of the evidence (see People vTzitzikalakis, 8 NY3d 217, 221 [2007]; People v Consalvo, 89 NY2d140, 146 [1996]; People v Deschaine, 116 AD3d 1303, 1303 [2014],lv denied 23 NY3d 1019 [2014]; People v Stevens, 84 AD3d 1424,1427 [2011], lv denied 17 NY3d 822 [2011]). The burden thenshifted to defendant “to offer evidence contradicting thePeople’s calculations” (People v Tzitzikalakis, 8 NY3d at 221 n2; see People v Rogers, 157 AD3d 1001, 1010 [2018], lv denied 30NY3d 1119 [2018]; People v Decker, 139 AD3d 1113, 1118 [2016], lvdenied 28 NY3d 928 [2016]). This defendant failed to do.Defendant’s contention that the total amount of restitution –while significant — is harsh and excessive is unpersuasive as therestitution award is limited to the monetary loss suffered by thechurch. In any event, we note that “defendant may apply at anytime for resentencing upon the ground that he is unable to pay”(People v Fancher, 116 AD3d 1084, 1089 [2014]; see CPL 420.10[5]).Lynch, J.P., Devine, Aarons and Pritzker, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
