| People v Brusie |
| 2010 NY Slip Op 01191 [70 AD3d 1395] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Brusie,Also Known as David B. Brusie, David J. Brusie, David B. Brusie, Jr., and David Bruce Brusie,Appellant. |
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Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered October8, 2008. The order directed defendant to pay restitution.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the amount of restitution ordered and as modified the order is affirmed, and the matteris remitted to Genesee County Court for a new hearing in accordance with the followingmemorandum: Defendant was convicted upon his plea of guilty of grand larceny in the fourthdegree (Penal Law § 155.30 [1]). County Court sentenced defendant to a term ofincarceration and scheduled a hearing to determine the amount of restitution to be imposed.Defendant did not appeal from the original judgment of conviction and now appeals from theorder of restitution entered following a hearing. As a general rule, a defendant may not appeal asof right from a restitution order in a criminal case (see CPL 450.10; People v Fricchione, 43 AD3d410 [2007]). Here, however, the court bifurcated the sentencing proceeding by severing theissue of restitution for a separate hearing, and thus "defendant may properly appeal as of rightfrom both the judgment of conviction . . . and the sentence as amended. . . , directing payment of restitution . . . , [with] no need to seek leaveto appeal from [the] order of restitution" (People v Swiatowy, 280 AD2d 71, 73 [2001],lv denied 96 NY2d 868 [2001]; see CPL 450.10 [2]; People v Russo, 68 AD3d 1437 n2 [2009]).
With respect to the merits, we agree with defendant that the court erred in delegating itsresponsibility to conduct a restitution hearing to its court attorney for the same reason as that setforth in our decision in People vBunnell (59 AD3d 942 [2009], amended on rearg 63 AD3d 1671 [2009],amended 63 AD3d 1727 [2009]). Although defendant failed to preserve his contentionfor our review, "preservation is not required inasmuch as the essential nature of the right to besentenced as provided by law is implicated" (People v Weber [appeal No. 2], 64 AD3d1185, 1186 [2009] [internal quotation marks omitted]; see Bunnell, 59 AD3d 942[2009]). We therefore modify the order by vacating the amount of restitution ordered, and weremit the matter to County Court for a new hearing to determine the amount of restitution incompliance with Penal Law § 60.27. Present—Smith, J.P., Peradotto, Lindley,Green and Gorski, JJ.