CONNOLLY, JONATHAN, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1095
KA 10-00505
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JONATHAN J. CONNOLLY, DEFENDANT-APPELLANT.
BRIDGET L. FIELD, ROCHESTER, 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 January 20, 2010. The order adjudged that
defendant must pay the sum of $31,403.49 in 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 appeals from an order of
restitution that was entered following a hearing. We note at the
outset that, because County Court bifurcated the sentencing proceeding
by severing the issue of restitution for a separate hearing, defendant
properly appeals as of right from the order of restitution (see People
v Brusie, 70 AD3d 1395, 1396). As the People correctly concede, the
court erred in delegating its responsibility to conduct the
restitution hearing to a judicial hearing officer (JHO) (see People v
Joseph, 90 AD3d 1646, 1647). 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
(see id.). Defendant further contends that the People should not be
given another opportunity to present evidence in support of the
victim’s request for restitution. We reject that contention. Penal
Law § 60.27 (1) provides that, where “the victim seeks restitution or
reparation, the court shall require, unless the interests of justice
dictate otherwise, . . . that the defendant make restitution of the
fruits of the offense and reparation for the actual out-of-pocket
loss” (emphasis added). The mandatory language of that statute
expresses the longstanding policy of “seeking to ensure that an
offender’s punishment includes making the victim whole” (People v
Tzitzikalakis, 8 NY3d 217, 220). We conclude that it would be
contrary to that policy and fundamentally unfair to the People and the
victim to deprive the People of the opportunity to present evidence in
support of the victim’s request for restitution based upon the error
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KA 10-00505
of the court in delegating its responsibility to conduct a restitution
hearing to the JHO. Defendant’s further challenges to the JHO’s
findings and the sufficiency of the People’s evidence are not
preserved for our review (see CPL 470.05 [2]; People v Snyder, 38 AD3d
1068, 1069), and we decline to exercise our power to address those
challenges as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court