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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

 

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UNITED STATES 

 

-againstPHILIP COLASUONNO 

 Defendant. 

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ORDER DENYING REQUEST 

FOR MODIFICATION OF 

RESTITUTION PAYMENT 

SCHEDULE 

05 Cr. 1110 (AKH) 

07 Cr. 555 (AKH) 

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ALVIN K. HELLERSTEIN, U.S.D.J.: 

 On September 3, 2009, Defendant submitted a request for modification of his restitution 

payment schedule. Defendant’s sentence included a restitution obligation of $781,467. At the 

sentencing hearing on July 19, 2007, I stayed entry of a payment schedule pending Defendant’s 

cooperation with the IRS in determining his arrears and developing a payment schedule. 

Transcript of Sentencing at 92-93, United States v. Philip Colasuonno, No. 05 Cr. 1110 

(S.D.N.Y. July 19, 2007). Subsequently, it became clear that Defendant failed to cooperate with 

the IRS in developing a schedule. See Philip Colasuonno v. United States, No. 08 Civ. 6549 

(AKH), 2009 WL 2523886, at *2 (S.D.N.Y. August 18, 2009). 

At a hearing held on September 4, 2008, I directed the parties to develop a proposed 

payment schedule. Transcript of Hearing at 7, United States v. Philip Colasuonno, 05 Cr. 1110 

(S.D.N.Y. Sept. 4, 2008). On December 10, 2008, the parties submitted letters to the court 

agreeing that restitution payments would be 15% of monthly gross income. The submissions 

also addressed the issue of whether Defendant’s disability benefits were includable in gross 

income for purposes of the restitution payments. Defendant’s submission related his family’s 

financial assets, and argued that I may not, and should not, include disability payments in gross 

income. On December 12, 2008, I ordered that disability benefits are includable and determined 

that payments would be 15% of monthly gross income. United States v. Philip Colasuonno, No. 

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05 Cr. 1110 (AKH), 07 Cr. 555 (AKH) (S.D.N.Y. Dec. 12, 2008). That order was based on my 

consideration of Defendant’s financial assets as 18 U.S.C. § 3664(f)(2) requires. Id. at *1. 

On January 7, 2009, I held a hearing to address objections to my order. At that hearing, 

Defendant asked the court to reduce the payment schedule under § 3664(f)(2), arguing that it 

would impose an undue burden on his family. Transcript of Hearing at 18, 21-22, United States 

v. Philip Colasuonno, 05 Cr. 1110 (S.D.N.Y. Jan. 7, 2009). I ruled that the unsubstantiated 

assertions in Defendant’s December 10, 2008, letter to the court were not sufficient proof, and 

rejected Defendant’s argument. Id. Defendant submitted proofs on February 3, 2009, but 

because he had appealed my December 12, 2008 order, I lacked jurisdiction to consider the 

application. Defendant later withdrew that appeal. 

Defendant now renews his request and styles it as one for both modification of the 

previously ordered restitution payment schedule pursuant to 18 U.S.C § 3664(k), and fresh 

consideration of financial assets in determining the payment schedule pursuant to 18 U.S.C. § 

3664(f)(2). Defendant’s proofs of his financial status are now more detailed but the substance 

remains much the same as that represented previously. 

I deny Colasuonno’s request for modification under § 3664(k). I considered his financial 

assets and needs in arriving at my order of December 12, 2008, and I do so again now for the 

same reasons as those I expressed at the time. 

Under § 3664(k), the court may modify a restitution payment schedule upon notification 

“of any material change in the defendant's economic circumstances that might affect the 

defendant's ability to pay.” 18 U.S.C. § 3664(k); See also United States v. Bowles, No. 98 Cr. 

1281 (DLC), 2003 WL 21396691, at *1 (S.D.N.Y. June 16, 2003) (“[I]f the defendant's 

economic circumstances change so that the defendant's ability to pay is impaired, the court may 

adjust the payments accordingly without discharging the defendant's obligation to pay full 

restitution.”). The propriety of a modification under the statute “is identified by an objective 

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comparison of a defendant's financial condition before and after a sentence is imposed.” United 

States v. Grant, 235 F.3d 95, 100 (2d Cir. 2000). 

Defendant’s affidavit shows only minor differences in financial status and alleged 

financial hardship resulting from other than his own choices and preferences. Defendant’s 

December 10, 2008 letter related monthly family income of $14,939, and expenses of $17,263. 

Defendant’s affidavit, submitted with his current request, relates monthly income of $15,307, and 

expenses of $17,337.31. See Colasuonno Aff. at ¶ 2. Colasuonno’s negative income reflects 

choices that are at the expense of creditors whom he cheated and whom he owes restitution. 

More than half of Defendant’s income goes to expenses related to his home, which he has 

chosen not to sell. These monthly expenses total $8,164.37, including $4,428.18—growing to 

$5,9781.82 in October 2009—on his first mortgage, $592.36 on his second mortgage, $2,046 for 

real estate tax, $362.83 for insurance, $670 for utilities, and $65 for water. Id. at ¶ 5(A-F), Exhs. 

A-F. Defendant states that the downturn in real estate values makes his home worth less than his 

mortgage debt, $1,233,045. Even so, a sale of his home would substantially reduce his monthly 

expenses, produce a positive income flow, and enable him to begin discharging his restitution 

obligations. 

Defendant’s expenses also include a number of unnecessary luxuries. These include 

expenses totaling $1,343.34 in connection with his lease of two vehicles—a 2008 Acura TSX and 

a 2007 BMW 328xi. Id. ¶ 5(H), Exhs. G-H. Defendant is currently serving a sentence of 46 

months of home confinement with little need to drive. Defendant also spends $320 on telephone 

service, including the use of three cellular telephones. Id. Ex. I. The use of one of these cellular 

phones accounted for $196.27 from September 26, 2008 through October 25, 2008. Id. 

Defendant has two adult children living in his primary residence rent free, and he does 

not indicate whether they contribute to defray expenses. See Sept. 30, 2009, Letter from U.S. 

Attorney at 7-8; Oct. 2, 2009, Letter from Robert M. Baum, Esq. at 2-3. Defendant asserts that 

this is temporary but he gives no information of how an effort is being made to change the 

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