Opinion
09-29-2017
The PEOPLE of the State of New York, Respondent, v. Jesse J. ROBERITES, Defendant–Appellant.
Charles J. Greenberg, Amherst, for defendant-appellant. Gregory J. Mccaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for respondent.
Charles J. Greenberg, Amherst, for defendant-appellant.
Gregory J. Mccaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from an order of restitution arising from a judgment convicting him upon his plea of guilty of attempted arson in the third degree ( Penal Law §§ 110.00, 150.10 ). Initially, we note that, "[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case ... Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing" ( People v. Brusie, 70 A.D.3d 1395, 1396, 897 N.Y.S.2d 319 ). We therefore " view the appealed-from restitution order as an appealable amendment to the judgment of conviction," thereby obviating the need for defendant to seek leave to appeal from the instant restitution order ( People v. Russo, 68 A.D.3d 1437, 1437 n. 2, 891 N.Y.S.2d 213 ).
Contrary to defendant's contention, however, we conclude that the court properly ordered restitution "in an amount sufficient to compensate the victims for their ‘actual out-of-pocket loss' caused by defendant's criminal conduct" ( People v. Rivera, 70 A.D.3d 1484, 1485, 894 N.Y.S.2d 661, lv. denied 15 N.Y.3d 756, 906 N.Y.S.2d 829, 933 N.E.2d 228, quoting Penal Law § 60.27[1] ; see generally People v. Horne, 97 N.Y.2d 404, 412, 740 N.Y.S.2d 675, 767 N.E.2d 132 ). Defendant failed to preserve for our review his further contention that the court erred in ordering him to pay restitution to an entity that was not a victim of the crime (see § 60.27[4][b] ; People v. Daniels, 75 A.D.3d 1169, 1171, 904 N.Y.S.2d 859, lv. denied 15 N.Y.3d 892, 912 N.Y.S.2d 581, 938 N.E.2d 1016 ; see generally Horne, 97 N.Y.2d at 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 ). In any event, the insurance company and the adjuster that investigated defendant's claim were victims within the meaning of the statute (see e.g. People v. Pagan, 87 A.D.3d 1181, 1181, 929 N.Y.S.2d 332, lv. denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 ; People v. McLean, 71 A.D.3d 1500, 1501, 896 N.Y.S.2d 753, lv. denied 14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013 ).
Defendant's contention that the court erred in admitting hearsay evidence at the restitution hearing is without merit. It is well settled that "[a]ny relevant evidence, not legally privileged, may be received [at such a hearing] regardless of its admissibility under the exclusionary rules of evidence" ( CPL 400.30[4] ; see Penal Law § 60.27[2] ; People v. Francis L.M., 278 A.D.2d 919, 919, 718 N.Y.S.2d 669, lv. denied 97 N.Y.2d 754, 742 N.Y.S.2d 614, 769 N.E.2d 360 ). Defendant failed to preserve for our review his further contention that the court erred in failing to consider his inability to make the restitution payments (see People v. Pugliese, 113 A.D.3d 1112, 1112, 978 N.Y.S.2d 552, lv. denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 ; People v. Shortell, 30 A.D.3d 837, 838, 816 N.Y.S.2d 769 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
WHALEN, P.J., SMITH, CARNI, DeJOSEPH, and CURRAN, JJ., concur.