JOSEPH, III, RAYMOND E., PEOPLE v , 935 N.Y.2d 808 ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1335
KA 10-00123
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RAYMOND E. JOSEPH, III, DEFENDANT-APPELLANT.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), dated November 30, 2009. 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 following a jury
trial of burglary in the third degree (Penal Law § 140.20) and, after
being sentenced to a term of incarceration, he was ordered following a
hearing to pay restitution. Although we previously affirmed the
judgment of conviction (People v Joseph, 63 AD3d 1658), we modified
the restitution order by vacating the amount ordered on the ground
that County Court erred in delegating its responsibility to conduct
the restitution hearing to its court attorney (People v Joseph, 63
AD3d 1659, amended 63 AD3d 1727). We remitted the matter to County
Court for a new hearing to determine the amount of restitution (id.).
Upon remittal, the matter was referred to a judicial hearing officer
(JHO), who conducted a hearing and rendered a decision. The court
adopted the JHO’s decision and ordered defendant to pay restitution in
the amount found by the JHO to be appropriate.
We agree with defendant that the court erred in again delegating
its responsibility to conduct the restitution hearing. Penal Law §
60.27 (2) provides that, “[i]f the record does not contain sufficient
evidence [of the amount of restitution due] or upon request by the
defendant, the court must conduct a hearing upon the issue in
accordance with the procedure set forth in [CPL 400.30]” (emphasis
added). Significantly, “CPL 400.30 does not contain a provision
permitting the court to delegate its responsibility to conduct the
hearing to its court attorney or to any other fact finder” (People v
-2- 1335
KA 10-00123
Bunnell, 59 AD3d 942, 943, amended on rearg 63 AD3d 1671, amended 63
AD3d 1727 [emphasis added]). 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: December 30, 2011 Frances E. Cafarell
Clerk of the Court