| People v Joseph |
| 2011 NY Slip Op 09712 [90 AD3d 1646] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Raymond E.Joseph, III, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), dated November30, 2009. 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 matter isremitted to Genesee County Court for a new hearing in accordance with the followingmemorandum: Defendant was convicted following a jury trial of burglary in the third degree(Penal Law § 140.20) and, after being sentenced to a term of incarceration, he was orderedfollowing a hearing to pay restitution. Although we previously affirmed the judgment ofconviction (People v Joseph, 63AD3d 1658 [2009]), we modified the restitution order by vacating the amount ordered onthe ground that County Court erred in delegating its responsibility to conduct the restitutionhearing to its court attorney (People vJoseph, 63 AD3d 1659 [2009], amended 63 AD3d 1727 [2009]). We remittedthe matter to County Court for a new hearing to determine the amount of restitution (id.).Upon remittal, the matter was referred to a judicial hearing officer (JHO), who conducted ahearing and rendered a decision. The court adopted the JHO's decision and ordered defendant topay restitution in the amount found by the JHO to be appropriate.
We agree with defendant that the court erred in again delegating its responsibility to conductthe restitution hearing. Penal Law § 60.27 (2) provides that, "[i]f the record does notcontain sufficient evidence [of the amount of restitution due] or upon request by the defendant,the court must conduct a hearing upon the issue in accordance with the procedure setforth in [CPL 400.30]" (emphasis added). Significantly, "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" (People v Bunnell, 59 AD3d 942, 943 [2009], amended on rearg63 AD3d 1671 [2009], amended 63 AD3d 1727 [2009] [emphasis added]). Wetherefore modify the order by vacating the amount of restitution ordered, and we remit the matterto County Court for a new hearing to determine the amount of restitution in compliance withPenal Law § 60.27. Present—Smith, J.P., Peradotto, Lindley, Green and Martoche,JJ.