SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
April 29, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
THOMAS AQUINO, ALSO KNOWN AS THOMAS A. AQUINO,
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), rendered November 10, 2008.
People v Aquino
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 29, 2011
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.
The order directed defendant to pay restitution in the amount of $5,850.67.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the amount of restitution ordered is vacated, and the
matter is remitted to Genesee County Court for a new hearing in accordance with the following Memorandum: Defendant appeals from an order of
restitution arising from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 ). We reverse the
order for the same reason as that set forth in our decision in People v Bunnell (59 AD3d 942, amended 63 AD3d 1671, 1727), i.e., that County Court
erred in delegating its responsibility to conduct a restitution hearing to its court attorney. We add only that, "[a]s a general rule, a defendant may not
appeal as of right from a restitution order in a criminal case . . . [but, h]ere, however, the court bifurcated the sentencing proceeding by severing the
issue of restitution for a separate hearing," thereby obviating the need for defendant to seek leave to appeal from the instant restitution order (People v
Brusie, 70 AD3d 1395, 1396; see CPL 450.10 ; People v Russo, 68 AD3d 1437 n 2). We further note that, although defendant failed to preserve his
contention for our review (see CPL 470.05 ), preservation is not required inasmuch as defendant's essential "right to be sentenced as provided by
law" is implicated (People v Fuller, 57 NY2d 152, 156; see Bunnell, 63 AD3d at 1727). We therefore reverse the order and remit the matter to County
Court for a new hearing to determine the amount of restitution in compliance with Penal Law § 60.27.
Entered: April 29, 2011
Patricia L. Morgan Clerk of the Court
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