PEOPLE v. WEBER (2009)

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

The PEOPLE of the State of New York, Respondent, v. Marcia A. WEBER, Defendant-Appellant. (Appeal No. 2.)

Decided: July 02, 2009

PRESENT: HURLBUTT, J.P., MARTOCHE, FAHEY, CARNI, AND PINE, JJ.

Gary A. Horton, Public Defender, Batavia (Bridget L. Field of Counsel), for Defendant-Appellant. Lawrence Friedman, District Attorney, Batavia (David E. Gann of Counsel), for Respondent.

On appeal from an order amending her sentence to include restitution, defendant contends, inter alia, that County Court erred in delegating its responsibility to conduct a restitution hearing to its court attorney. We agree, for the same reason as that set forth in our decision in People v. Bunnell, 59 A.D.3d 942, 872 N.Y.S.2d 334, amended on rearg. 63 A.D.3d 1671, 879 N.Y.S.2d 801, amended 63 A.D.3d 1727, 880 N.Y.S.2d 602. Although defendant did not preserve her 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. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563). 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.

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.

MEMORANDUM:

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