| People v Williams |
| 2014 NY Slip Op 00754 [114 AD3d 1140] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v StaceyL. Williams, 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.), datedMay 23, 2012. The order directed defendant to pay restitution to the victims of twoburglaries.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order directing him to pay restitution tothe victims of two burglaries. On a prior appeal, we concluded that County Court hadimproperly delegated its responsibility to conduct a restitution hearing to its courtattorney (People vWilliams, 64 AD3d 1136, 1137 [2009]). We therefore modified the order byvacating the amount of restitution ordered, and we remitted the matter for a new hearingto determine the amount of restitution in compliance with Penal Law § 60.27(id.). The only evidence presented by the People at the hearing on remittal wasthe transcript of the hearing previously conducted by the court attorney in 2006. Despitethe court's error in delegating its responsibility to the court attorney in 2006, wenevertheless conclude that the transcript of the sworn testimony of the victims takennearly six years earlier, which was subject to cross-examination, constitutes "relevantevidence" (CPL 400.30 [4]). The statute expressly provides that relevant evidence maybe received "regardless of its admissibility under the exclusionary rules of evidence"(id.; see People vTzitzikalakis, 8 NY3d 217, 221 [2007]; People v Wilson, 108 AD3d 1011, 1013-1014 [2013]). Wefurther conclude that, contrary to defendant's contention, the court properly determinedthat the People established the out-of-pocket losses of the respective victims by therequisite preponderance of the evidence (see generally Tzitzikalakis, 8 NY3d at221; People v Horne, 97 NY2d 404, 410-411 [2002]). Present—Scudder,P.J., Smith, Centra, Carni and Whalen, JJ.