People v. Brusie

• Decision Date: 11 February 2010
• Citation: People v. Brusie, 897 N.Y.S.2d 319, 70 A.D.3d 1395 (N.Y. App. Div. 2010)
• Parties: The PEOPLE of the State of New York, Respondent, v. David BRUSIE, also known as David B. Brusie, also known as David J. Brusie, also known as David B. Brusie, Jr., also known as David Bruce Brusie, Defendant-appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 319

70 A.D.3d 1395

The PEOPLE of the State of New York, Respondent,

v.David BRUSIE, also known as David B. Brusie, also known as David J. Brusie, also known as David B. Brusie, Jr., also known as David Bruce Brusie, Defendant-appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 11, 2010.

Gary A. Horton, Public Defender, Batavia (Melissa L. Cianfrini of Counsel), for Defendant-Appellant.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.

MEMORANDUM:

Defendant was convicted upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30[1] ).County Court sentenced defendant to a term of incarceration and scheduled a hearing to determine the amount of restitution to be imposed.Defendant did not appeal from the original judgment of conviction and now appeals from the order of restitution entered following a hearing.As a general rule, a defendant may not appeal as of right from a restitution order in a criminal case ( seeCPL 450.10;People v. Fricchione,43 A.D.3d 410, 840 N.Y.S.2d 422).Here, however, the court bifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing, and thus " defendant may properly appeal as of right from both the judgment of conviction ... and the sentence as amended ..., directing payment of restitution ..., [with] no need to seek leave to appeal from [the] order of restitution"( People v. Swiatowy,280 A.D.2d 71, 73, 721 N.Y.S.2d 185, lv. denied96 N.Y.2d 868, 730 N.Y.S.2d 43, 754 N.E.2d 1126;seeCPL 450.10[2];People v. Russo,68 A.D.3d 1437 n. 2, 891 N.Y.S.2d 213).

With respect to the merits, we agree with defendant that the court erred in delegating its responsibility to conduct a restitution hearing to its court attorney forthe same reason as that set forth in our decision in People v. Bunnell,59 A.D.3d 942, amended on rearg.63 A.D.3d 1671, 879 N.Y.S.2d 801, amended63 A.D.3d 1727, 880 N.Y.S.2d 602.Although defendant failed to preserve his contention for our review, "preservation is not required inasmuch as the essential nature of the right to be sentenced as provided by law is implicated"( People v. Weber[appeal No. 2], 64 A.D.3d 1185, 1186, 883 N.Y.S.2d 671[internal quotation marks omitted];seeBunnell,59 A.D.3d 942, 872 N.Y.S.2d 334).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...