| People v Bunnell |
| 2009 NY Slip Op 00752 [59 AD3d 942] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gerri L.Bunnell, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (Kevin T. Finnell of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedOctober 23, 2006. The judgment convicted defendant, upon her plea of guilty, of attemptedfalsifying business records in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the amount of restitutionordered and as modified the judgment is affirmed, and the matter is remitted to Genesee CountyCourt for a new hearing in accordance with the following memorandum: Defendant appeals froma judgment convicting her upon her plea of guilty of attempted falsifying business records in thefirst degree (Penal Law §§ 110.00, 175.10). A restitution hearing was conducted byCounty Court's court attorney, after which the court attorney prepared a preliminary fact-findingreport. The court affirmed the report and ordered defendant to pay $8,883.99 in restitution, plus a5% surcharge. We conclude that the court erred in delegating its responsibility to conduct therestitution hearing to its court attorney. We reach this issue sua sponte, and we note that preservation is not required inasmuch as the "'essential nature' of the right to be sentenced as provided by law" is implicated (People v Fuller, 57 NY2d 152, 156). To the extent that People v Jackson (23 AD3d 1057, lv denied 6 NY3d 814) holds otherwise, it is no longer to be followed. Penal Law § 60.27 (2) provides that, upon the defendant'srequest, "the court must conduct a hearing" with respect to the amount of restitution inaccordance with the procedures set forth in CPL 400.30. CPL 400.30 does not contain aprovision permitting the court to delegate its responsibility to conduct the hearing to its courtattorney or to any other factfinder. It cannot be said that the procedure utilized by the court is authorized by People v Fuller (57 NY2d 152). Indeed, the court attorney did not act merely as a "preliminary fact finder" (id. at 158) but, rather, he conducted an adversarial hearing and made credibilityy determinations, thereby assuming a role specifically limited to the authority of the court (see Penal Law § 60.27[2]; Fuller, 57 NY2d at 158-159).We therefore modify the judgment by vacating the amount ofrestitution ordered, and we remit the matter to County Court for a new hearing to determine theamount of restitution in compliance with Penal Law § 60.27. Present—Smith, J.P.,Centra, Peradotto and Gorski, JJ.
[As amended by 63 AD3d 1671 (2009); 63 AD3d 1727 (2009).]