July 2, 2009
THE PEOPLE OF THE STATE OF NEW YORK,
STACEY L. WILLIAMS,
Appeal from an order of the Genesee County Court (Robert C.Noonan, J., entered April 27, 2007.
Appellate Division, Fourth Judicial Department
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 ), 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 ), 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.
Patricia L. Morgan
Clerk of the Court
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