| People v Aquino |
| 2011 NY Slip Op 03409 [83 AD3d 1532] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Thomas Aquino, Also Known as Thomas A. Aquino,Appellant. |
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Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), renderedNovember 10, 2008. The order directed defendant to pay restitution in the amount of $5,850.67.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, theamount of restitution ordered is vacated, and the matter is remitted to Genesee County Court fora new hearing in accordance with the following memorandum: Defendant appeals from an orderof restitution arising from a judgment convicting him upon his plea of guilty of burglary in thesecond degree (Penal Law § 140.25 [2]). We reverse the order for the same reason as thatset forth in our decision in People vBunnell (59 AD3d 942 [2009], amended 63 AD3d 1671 [2009], 63 AD3d 1727[2009]), i.e., that County Court erred in delegating its responsibility to conduct a restitutionhearing to its court attorney. We add only that, "[a]s a general rule, a defendant may not appeal asof right from a restitution order in a criminal case . . . [but, h]ere, however, thecourt bifurcated the sentencing proceeding by severing the issue of restitution for a separatehearing," thereby obviating the need for defendant to seek leave to appeal from the instantrestitution order (People v Brusie,70 AD3d 1395, 1396 [2010]; see CPL 450.10 [2]; People v Russo, 68 AD3d 1437,1437 n 2 [2009]). We further note that, although defendant failed to preserve his contention forour review (see CPL 470.05 [2]), preservation is not required inasmuch as defendant'sessential "right to be sentenced as provided by law" is implicated (People v Fuller, 57NY2d 152, 156 [1982]; see Bunnell, 63 AD3d at 1727). We therefore reverse theorder and remit the matter to County Court for a new hearing to determine the amount ofrestitution in compliance with Penal Law § 60.27. Present—Smith, J.P., Peradotto,Carli, Sconiers and Green, JJ.