| People v Morrishaw |
| 2012 NY Slip Op 01153 [92 AD3d 1088] |
| February 16, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ChristopherMorrishaw, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Peters, J. Appeal from an order of the County Court of Schenectady County (Drago, J.),entered July 8, 2009, which granted the application of Light's Funeral Home to modify a priororder of restitution and direct defendant to pay such restitution to Light's Funeral Home.
In August 2006, defendant pleaded guilty to murder in the second degree. As part of hissentence, defendant was ordered to pay restitution in the amount of $5,970 to the mother of thevictim to reimburse her for funeral expenses. In April 2009, Light's Funeral Home (hereinafterthe funeral home) sent a letter to County Court informing it that the victim's mother had not paidthe funeral bill and requesting an order directing defendant to make restitution payments to itinstead of the victim's mother. County Court thereafter vacated the initial restitution order andissued an order directing that restitution be paid to the funeral home in the amount of $5,970.Defendant appeals.[FN1][*2]
Assuming, without deciding, that the nearly2½-year delay between defendant's sentencing and the modification of the restitution orderdid not divest County Court of jurisdiction over defendant (see People v Naumowicz, 76 AD3d 747, 749 [2010]; People vKnowles, 293 AD2d 770, 771 [2002]; People v Swiatowy, 280 AD2d 71, 73 [2001],lv denied 96 NY2d 868 [2001]),[FN2]we agree with defendant's contention that the court did not have the authority to require him tomake restitution to the funeral home. Pursuant to Penal Law § 60.27 (1), County Court isauthorized to order restitution to the "victim" of a crime as part of the sentence imposed. Here,the funeral home is not a "victim" of the crime since the expenses for which it seeksreimbursement did not arise from a "legal obligation[ ] . . . directly and causallyrelated to the crime," but rather was voluntarily incurred (People v Cruz, 81 NY2d 996,998 [1993]; compare People v Kim, 91 NY2d 407, 411 [1998] [insurance company wasclassified a "victim" because it was legally obligated under its insurance contract to pay for thevictim's medical expenses for treatment of injuries caused by the defendant's crimes]; Peoplev Hall-Wilson, 69 NY2d 154, 157-158 [1987] [the defendant's employer was entitled torestitution as a "victim" for the amount that the employer was legally obligated to pay to itscustomer because of the fire set by the defendant while acting in the scope of his employer'sbusiness]; People v Russell, 41AD3d 1094, 1097 [2007], lv denied 10 NY3d 964 [2008] [same]). Nor can thefuneral home be deemed a "representative" of the crime victim to whom restitution may beordered (Penal Law § 60.27 [4] [b]), as it is not "one who represents or stands in the placeof [the victim], [such as] an agent, an assignee, an attorney, a guardian, a committee, aconservator, a partner, a receiver, an administrator, an executor or an heir of another person, or aparent of a minor" (Executive Law § 621 [6]). Rather, the funeral home is a creditor of thevictim's mother, having voluntarily contracted with her to provide services. Seeking payment forits services, the funeral home's resort was to a civil action against the victim's mother for breachof contract, not the criminal courts. As County Court lacked the authority to order restitution tothe funeral home, the July 2009 restitution order must be reversed and the August 2006 order ofrestitution reinstated.
Mercure, A.P.J., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isreversed, on the law, and the August 2006 restitution order reinstated.
Footnote 1: Although, as a general rule,restitution orders are not appealable (see CPL 450.10; People v Naumowicz, 76 AD3d 747, 749 n 1 [2010]; People v Russo, 68 AD3d 1437,1437 n 2 [2009]), we deem the restitution order here to be an appealable amendment to thejudgment of conviction (see People v Naumowicz, 76 AD3d at 749 n 1; People vRusso, 68 AD3d at 1437 n 2).
Footnote 2: At the hearing before CountyCourt, counsel for the funeral home affirmed that he had been informed by the victim's mothershortly after defendant's sentencing in 2006 that she had no intention of paying the bill for thefuneral expenses, yet failed to make the instant "application" until April 2009.