| People v Roberites |
| 2017 NY Slip Op 06807 [153 AD3d 1650] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jesse J. Roberites, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from an order of the Livingston County Court (Robert B. Wiggins, J.), dated January27, 2015. The order imposed restitution.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order of restitution arising from a judgmentconvicting him upon his plea of guilty of attempted arson in the third degree (Penal Law§§ 110.00, 150.10). Initially, we note that, "[a]s a general rule, a defendantmay not appeal as of right from a restitution order in a criminal case . . . Here,however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of restitutionfor a separate hearing" (People vBrusie, 70 AD3d 1395, 1396 [2010]). We therefore "view the appealed-from restitutionorder as an appealable amendment to the judgment of conviction," thereby obviating the need fordefendant to seek leave to appeal from the instant restitution order (People v Russo, 68 AD3d 1437,1437 n 2 [2009]).
Contrary to defendant's contention, however, we conclude that the court properly orderedrestitution "in an amount sufficient to compensate the victims for their 'actual out-of-pocket loss'caused by defendant's criminal conduct" (People v Rivera, 70 AD3d 1484, 1485 [2010], lv denied 15NY3d 756 [2010], quoting Penal Law § 60.27 [1]; see generally People vHorne, 97 NY2d 404, 412 [2002]). Defendant failed to preserve for our review his furthercontention that the court erred in ordering him to pay restitution to an entity that was not a victimof the crime (see § 60.27 [4] [b]; People v Daniels, 75 AD3d 1169, 1171 [2010], lv denied 15NY3d 892 [2010]; see generally Horne, 97 NY2d at 414 n 3). In any event, the insurancecompany and the adjuster that investigated defendant's claim were victims within the meaning ofthe statute (see e.g. People v Pagan,87 AD3d 1181, 1181 [2011], lv denied 18 NY3d 885 [2012]; People v McLean, 71 AD3d 1500,1501 [2010], lv denied 14 NY3d 890 [2010]).
Defendant's contention that the court erred in admitting hearsay evidence at the restitutionhearing is without merit. It is well settled that "[a]ny relevant evidence, not legally privileged,may be received [at such a hearing] regardless of its admissibility under the exclusionary rules ofevidence" (CPL 400.30 [4]; see Penal Law § 60.27 [2]; People v FrancisL.M., 278 AD2d 919, 919 [2000], lv denied 97 NY2d 754 [2002]). Defendant failedto preserve for our review his further contention that the court erred in failing to consider hisinability to make the restitution payments (see People v Pugliese, 113 AD3d 1112, 1112 [2014], lv denied23 NY3d 1066 [2014]; People vShortell, 30 AD3d 837, 838 [2006]). We decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).Present—Whalen, P.J., Smith, Carni, DeJoseph and Curran, JJ.