| People v LaVilla |
| 2011 NY Slip Op 06767 [87 AD3d 1369] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Stephen P.LaVilla, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered June 16,2009. The order directed defendant to pay restitution in the amount of $22,488.55.
It is hereby ordered that the order so appealed from is unanimously modified on the law byreducing the amount of restitution ordered with respect to Erie Insurance Company of New Yorkto $7,870.87 and reducing the collection surcharge to $1,037.26, thereby reducing the totalamount of restitution ordered to $21,782.36, and as modified the order is affirmed.
Memorandum: Defendant appeals from an order of restitution arising from a judgmentconvicting him upon his plea of guilty of burglary in the second degree (Penal Law §140.25 [2]). We note at the outset that, "[a]s a general rule, a defendant may not appeal as of rightfrom a restitution order in a criminal case . . . Here, however, [County C]ourtbifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing,and thus 'defendant may properly appeal as of right from both the judgment of conviction. . . and the sentence as amended . . . , directing payment of restitution. . . , [with] no need to seek leave to appeal from [the] order of restitution' " (People v Brusie, 70 AD3d 1395,1396 [2010]).
We reject defendant's contention that the People failed to establish the amount of restitutionby a preponderance of the evidence (see CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d217, 221-222 [2007]). The People submitted the victim impact statement, which detailed thecosts and damages resulting from defendant's actions, and that statement was supported by thevictim's testimony at the restitution hearing (see People v Howell, 46 AD3d 1464 [2007], lv denied 10NY3d 841 [2008]; People vSenecal, 31 AD3d 980 [2006]; People v Periard, 15 AD3d 693 [2005]). In addition, the amount ofrestitution was supported by the business records of the victim's insurance company, ErieInsurance Company of New York (Erie) (see People v McLean, 71 AD3d 1500 [2010], lv denied 14NY3d 890 [2010]; People vWorthy, 17 AD3d 1156 [2005], lv denied 5 NY3d 796 [2005]; see also People v Stevens, 84 AD3d1424, 1427 [2011]; see generally CPLR 4518). We conclude, however, that thePeople correctly concede that some of the items for which restitution was requested in Erie'sclaim were improperly included. We therefore modify the order by reducing the amount ofrestitution ordered with respect to Erie to $7,870.87. Inasmuch as a 5% collection surcharge wasalso imposed, we further modify the order by reducing the collection surcharge to $1,037.26,thereby [*2]reducing the total amount of restitution ordered to$21,782.36. Present—Scudder, P.J., Smith, Lindley, Sconiers and Gorski, JJ.