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The People of the State of New York v. Stacey L. Williams

SUPREME COURT OF THE STATE OF NEW YORK


July 2, 2009

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
STACEY L. WILLIAMS,
DEFENDANT-APPELLANT.

Appeal from an order of the Genesee County Court (Robert C.Noonan, J., entered April 27, 2007.

Appellate Division, Fourth Judicial Department

264

MEMORANDUM AND ORDER

PRESENT: SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ.

The order directed defendant to pay restitution.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the amount of restitution ordered and as modified the order is affirmed, and the matter is remitted to Genesee County Court for a new hearing in accordance with the following Memorandum: Defendant was convicted upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]), and he now appeals from an order of restitution. Defendant contends that County Court erred in ordering him to pay restitution in the amount of $4,812.35. We agree, for the same reason as that set forth in our decision in People v Bunnell (59 AD3d 942, amended on rearg AD3d [June 5, 2009], amended AD3d [June 19, 2009]). Although defendant failed to preserve his contention for our review (see CPL 470.05 [2]), preservation is not required because defendant has an essential "right to be sentenced as provided by law" (People v Fuller, 57 NY2d 152, 156), and that right is implicated here (see Bunnell, AD3d [June 19, 2009]). We therefore modify the order by vacating the amount of restitution ordered, and we remit the matter to County Court for a new hearing to determine the amount of restitution in compliance with Penal Law § 60.27.

Entered:

Patricia L. Morgan

Clerk of the Court

20090702

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