| People v Connolly |
| 2014 NY Slip Op 04628 [118 AD3d 1449] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJonathan J. Connolly, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), datedApril 4, 2013. The order determined that the Erie Insurance Company is entitled torestitution of $31,796.69 from defendant.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order of restitution that was enteredfollowing a hearing. On a prior appeal, we concluded that County Court erred indelegating its responsibility to conduct the restitution hearing to a judicial hearing officer(JHO) (People v Connolly,100 AD3d 1419, 1419 [2012]). We therefore modified the order by vacating theamount of restitution ordered, and we remitted the matter to County Court for a newhearing to determine the amount of restitution (id.). Defendant contends for thefirst time on this appeal that the court was divested of jurisdiction in this matter onremittal as a result of the delay in imposing restitution and thus failed to preserve thatcontention for our review (see People v Marshall, 228 AD2d 15, 17-18 [1997],lv denied 89 NY2d 1013 [1997]). We decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[3] [c]). Defendant further contends that the hearing on remittal was inadequate becausethe only evidence presented by the People consisted of the transcript and exhibits fromthe hearing previously conducted by the JHO in December 2009. We reject thatcontention. "Despite the court's error in delegating its responsibility to the [JHO] in[December 2009], we nevertheless conclude that the transcript of the sworn testimony ofthe [witnesses] taken [over three] years earlier, which was subject to cross-examination,[together with the exhibits admitted during that hearing,] constitutes 'relevant evidence'. . . [that] may be received 'regardless of its admissibility under theexclusionary rules of evidence' " (People v Williams, 114 AD3d 1140, 1140 [2014], quotingCPL 400.30 [4]). We further conclude that, contrary to defendant's contention, the courtproperly relied upon that evidence in determining that the People established theout-of-pocket losses of the insurance company by the requisite preponderance of theevidence (see id.; seegenerally People v Tzitzikalakis, 8 NY3d 217, 221-222 [2007]).Present—Scudder, P.J., Fahey, Carni, Valentino and Whalen,JJ.