People v Joseph

2009 NY Slip Op 04638

Decided on June 5, 2009

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

As corrected through June 19, 2009

Decided on June 5, 2009


PRESENT: MARTOCHE, J.P., SMITH, FAHEY, CARNI, AND GREEN, JJ.
883 KA 07-02578




Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered October 26, 2007. The order directed defendant to pay restitution.


GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT R. ZICKL OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the order so appealed from is unanimously modified and on the law by vacating the amount of restitution ordered and as modified the order is affirmed, and the matter is remitted to Genesee County Court for a new hearing in accordance with the following Memorandum: On appeal from an order directing him to pay restitution in the amount of $551.82 plus a 5% surcharge, defendant contends that County Court erred in delegating its responsibility to conduct the restitution hearing to its court attorney, who prepared a preliminary fact-finding report that was adopted by the court. We agree, for the same reason as that set forth in our decision in People v Bunnell (59 AD3d 942, amended on rearg ___ AD3d ___ [June 5, 2009]). We note that, although defendant failed to preserve his contention for our review (see CPL 470.05 [2]), 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). We therefore modify the order by vacating the amount of restitution ordered, and we remit the matter to County Court for a new hearing to determine the amount of restitution in compliance with Penal Law § 60.27.
Entered: June 5, 2009
Patricia L. Morgan
Clerk of the Court
[As amended by 63 AD3d —, 2009 NY Slip Op 05162.]