Opinion
No. 883 KA 07-02578.
June 5, 2009.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), entered October 26, 2007. The order directed defendant to pay restitution.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT R. ZICKL OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Smith, Fahey, Carni and Green, JJ.
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: On appeal from an order directing him to pay restitution in the amount of $551.82 plus a 5% surcharge, defendant contends that County Court erred in delegating its responsibility to conduct the restitution hearing to its court attorney, who prepared a preliminary fact-finding report that was adopted by the court. We agree, for the same reason as that set forth in our decision in People v Bunnell ( 59 AD3d 942, amended on rearg 63 AD3d 1671). We note that, although defendant failed to preserve his contention for our review ( see CPL 470.05), preservation is not required inasmuch as the "'essential nature' of the right to be sentenced as provided by law" is implicated ( People v Fuller, 57 NY2d 152, 156). 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.
[As amended by 63 AD3d 1727.]