People v. Cheatum

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The plea minutes show that defendant knowingly and voluntarily entered his plea and that there was no reason for the court to believe that defendant was incapable of understanding the nature of the charges against him. The probation report indicates that defendant was familiar with the court system since he "was very precise regarding past sentences, penalties * * * and details regarding his past convictions.” Although the probation report also indicates that defendant scored below 50 on an intelligence quotient test, that score resulted from defendant’s refusal to complete the test.

Because the court ordered restitution without holding a hearing and relied solely upon the probation report, we modify the sentence by deleting the provision for restitution (see, People v Fuller, 57 NY2d 152; People v Dixon, 134 AD2d 877). (Appeal from judgment of Erie County Court, D’Amico, J.— *987attempted rape, first degree.) Present — Callahan, J. P., Boomer, Green, Lawton and Davis, JJ.