         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1515
KA 08-01950
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN L. MULLINGS, DEFENDANT-APPELLANT.


TIMOTHY PATRICK MURPHY, WILLIAMSVILLE, 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.), rendered June 18, 2008. The order directed defendant to
pay 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 conducted after he
was sentenced to a term of incarceration upon his conviction of
attempted robbery in the first degree (Penal Law §§ 110.00, 160.15).
We note at the outset 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 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 Brusie, 70 AD3d 1395, 1396).
As defendant contends and the People correctly concede, the court
erred in delegating its responsibility to conduct a restitution
hearing to its court attorney (see id.; People v Bunnell, 59 AD3d 942,
amended on rearg 63 AD3d 1671, amended 63 AD3d 1727). We reject the
further contention of defendant, however, that the court erred in
severing the issue of restitution from the other aspects of sentencing
(see People v Swiatowy, 280 AD2d 71, 72-73, lv denied 96 NY2d 868).
We also reject defendant’s contention that the People should not be
given another opportunity to conduct a restitution hearing. Inasmuch
as all of the proceedings in this case took place prior to this
Court’s decision in Bunnell, it would be fundamentally unfair to the
People and the victim to deprive the People of the right to conduct a
second hearing. We therefore modify the order by vacating the amount
                                 -2-                          1515
                                                         KA 08-01950

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.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
