| People v Connolly |
| 2012 NY Slip Op 07482 [100 AD3d 1419] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jonathan J.Connolly, 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 January 20,2010. The order adjudged that defendant must pay the sum of $31,403.49 in 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 appeals from an order of restitution that was entered following ahearing. We note at the outset that, because County Court bifurcated the sentencing proceedingby severing the issue of restitution for a separate hearing, defendant properly appeals as of rightfrom the order of restitution (see Peoplev Brusie, 70 AD3d 1395, 1396 [2010]). As the People correctly concede, the court erredin delegating its responsibility to conduct the restitution hearing to a judicial hearing officer(J.H.O.) (see People v Joseph, 90AD3d 1646, 1647 [2011]). We therefore modify the order by vacating the amount ofrestitution ordered, and we remit the matter to County Court for a new hearing to determine theamount of restitution (see id.). Defendant further contends that the People should not begiven another opportunity to present evidence in support of the victim's request for restitution.We reject that contention. Penal Law § 60.27 (1) provides that, where "the victim seeksrestitution or reparation, the court shall require, unless the interests of justice dictateotherwise, . . . that the defendant make restitution of the fruits of the offense andreparation for the actual out-of-pocket loss" (emphasis added). The mandatory language of thatstatute expresses the longstanding policy of "seeking to ensure that an offender's punishmentincludes making the victim whole" (People v Tzitzikalakis, 8 NY3d 217, 220 [2007]). We conclude thatit would be contrary to that policy and fundamentally unfair to the People and the victim todeprive the People of the opportunity to present evidence in support of the victim's request forrestitution based upon the error of the court in delegating its responsibility to conduct arestitution hearing to the J.H.O. Defendant's further challenges to the J.H.O.'s findings and thesufficiency of the People's evidence are not preserved for our review (see CPL 470.05[2]; People v Snyder, 38 AD3d1068, 1069 [2007]), and we decline to exercise our power to address those challenges as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Fahey, J.P., Peradotto, Carni, Whalen and Martoche, JJ.