        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

993
KA 09-01469
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEPHEN P. LAVILLA, DEFENDANT-APPELLANT.


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.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), entered June 16, 2009. The order directed defendant to
pay restitution in the amount of $22,488.55.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by reducing the amount of restitution
ordered with respect to Erie Insurance Company of New York to
$7,870.87 and reducing the collection surcharge to $1,037.26, thereby
reducing the total amount of restitution ordered to $21,782.36, and as
modified the order is affirmed.

     Memorandum: Defendant appeals from an order of restitution
arising from a judgment convicting him upon his plea of guilty of
burglary in the second degree (Penal Law § 140.25 [2]). 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 C]ourt 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).

     We reject defendant’s contention that the People failed to
establish the amount of restitution by a preponderance of the evidence
(see CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221-222).
The People submitted the victim impact statement, which detailed the
costs and damages resulting from defendant’s actions, and that
statement was supported by the victim’s testimony at the restitution
hearing (see People v Howell, 46 AD3d 1464, lv denied 10 NY3d 841;
People v Senecal, 31 AD3d 980; People v Periard, 15 AD3d 693). In
addition, the amount of restitution was supported by the business
                                 -2-                          993
                                                        KA 09-01469

records of the victim’s insurance company, Erie Insurance Company of
New York (Erie) (see People v McLean, 71 AD3d 1500, lv denied 14 NY3d
890; People v Worthy, 17 AD3d 1156, lv denied 5 NY3d 796; see also
People v Stevens, 84 AD3d 1424, 1427; see generally CPLR 4518). We
conclude, however, that the People correctly concede that some of the
items for which restitution was requested in Erie’s claim were
improperly included. We therefore modify the order by reducing the
amount of restitution ordered with respect to Erie to $7,870.87.
Inasmuch as a 5% collection surcharge was also imposed, we further
modify the order by reducing the collection surcharge to $1,037.26,
thereby reducing the total amount of restitution ordered to
$21,782.36.




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
