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

629
KA 13-00884
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN J. CONNOLLY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), 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.), dated April 4, 2013. The order determined that the Erie
Insurance Company is entitled to restitution of $31,796.69 from
defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order of restitution that
was entered following a hearing. On a prior appeal, we concluded that
County Court erred in delegating its responsibility to conduct the
restitution hearing to a judicial hearing officer (JHO) (People v
Connolly, 100 AD3d 1419, 1419). We therefore modified the order by
vacating the amount of restitution ordered, and we remitted the matter
to County Court for a new hearing to determine the amount of
restitution (id.). Defendant contends for the first time on this
appeal that the court was divested of jurisdiction in this matter on
remittal as a result of the delay in imposing restitution and thus
failed to preserve that contention for our review (see People v
Marshall, 228 AD2d 15, 17-18, lv denied 89 NY2d 1013). 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]). Defendant
further contends that the hearing on remittal was inadequate because
the only evidence presented by the People consisted of the transcript
and exhibits from the hearing previously conducted by the JHO in
December 2009. We reject that contention. “Despite the court’s error
in delegating its responsibility to the [JHO] in [December 2009], we
nevertheless conclude that the transcript of the sworn testimony of
the [witnesses] taken [over three] years earlier, which was subject to
cross-examination, [together with the exhibits admitted during that
hearing,] constitutes ‘relevant evidence’ . . . [that] may be received
‘regardless of its admissibility under the exclusionary rules of
                                 -2-                           629
                                                         KA 13-00884

evidence’ ” (People v Williams, 114 AD3d 1140, 1140, quoting CPL
400.30 [4]). We further conclude that, contrary to defendant’s
contention, the court properly relied upon that evidence in
determining that the People established the out-of-pocket losses of
the insurance company by the requisite preponderance of the evidence
(see id.; see generally People v Tzitzikalakis, 8 NY3d 217, 221-222).




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
