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

1097
KA 16-00767
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KURY S. SPENCER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


THE LAW OFFICES OF PETER K. SKIVINGTON, PLLC, GENESEO (PETER R.
CHANDLER OF COUNSEL), FOR DEFENDANT-APPELLANT.

ERIC R. SCHIENER, SPECIAL PROSECUTOR, GENESEO, FOR RESPONDENT.


     Appeal from an order of the Livingston County Court (Dennis S.
Cohen, J.), entered July 28, 2011. The order directed defendant to
pay restitution.

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

     Memorandum: Defendant was convicted upon a jury verdict of,
inter alia, two counts of assault in the second degree (People v
Spencer, 108 AD3d 1081, lv denied 22 NY3d 1159). After bifurcating
the sentencing proceeding and conducting a separate restitution
hearing (see generally People v Connolly, 100 AD3d 1419, 1419), County
Court ordered defendant to pay $74,491.37 (appeal No. 1). The order
was mailed by the court to defense counsel and entered with the court
clerk on July 28, 2011. Defendant filed a notice of appeal dated
August 2, 2011. By order entered August 17, 2015, the court converted
the order of restitution to a civil judgment (appeal No. 2).
Defendant now appeals from both orders.

     We reject the People’s contention that appeal No. 1 should be
dismissed for failure to perfect the appeal in a timely manner.
“[S]ervice by the prevailing party is necessary under CPL 460.10 in
order to commence the time period for the other party to take an
appeal” (People v Washington, 86 NY2d 853, 854). Here, the record
establishes that defendant’s attorneys received a copy of the order in
appeal No. 1 and promptly filed a notice of appeal, but there is no
evidence that the People ever served the order as required by CPL
460.10 (1) (a). Inasmuch as “the record fails to establish that [the
People] ever served [defendant] with a copy of the order or with
notice of entry . . . , [defendant’s] 30-day period to appeal County
Court’s order never began to run” (People v Aubin, 245 AD2d 805, 806;
see Washington, 86 NY2d at 854-855). We agree with the People,
                                 -2-                          1097
                                                         KA 16-00767

however, that appeal No. 2 should be dismissed inasmuch as no appeal
as of right or by permission lies from that order (see generally CPL
450.10, 450.15; People v Fricchione, 43 AD3d 410, 411).

     We reject defendant’s contention that the court erred in ordering
restitution. “Restitution is ‘the sum necessary to compensate the
victim for out-of-pocket losses’ ” (People v Tzitzikalakis, 8 NY3d
217, 220; see Penal Law § 60.27 [1]). “[R]estitution serves the dual,
salutary purposes of easing the victim’s financial burden while
reinforcing the offender’s sense of responsibility for the offense and
providing a constructive opportunity for the offender to pay his or
her debt to society” (People v Horne, 97 NY2d 404, 411). Defendant’s
conviction stemmed from his conduct in operating a motor vehicle and
colliding head-on with another vehicle, causing serious physical
injuries to two victims. Contrary to defendant’s contention, the
People met their burden of establishing the victims’ out-of-pocket
medical and other costs incurred as a result of defendant’s conduct by
a preponderance of the evidence (see People v Tuper, 125 AD3d 1062,
1062, lv denied 25 NY3d 1078; People v Pugliese, 113 AD3d 1112, 1112-
1113, lv denied 23 NY3d 1066; People v Howell, 46 AD3d 1464, 1465, lv
denied 10 NY3d 841).

     Contrary to defendant’s further contention, the court was not
required to offset the amount of restitution by the settlement
received by the victims in their lawsuit against defendant and his
father, who owned the vehicle that defendant was operating at the time
of the accident. An award of restitution must take into account any
benefit received by the victim and include appropriate offsets (see
Tzitzikalakis, 8 NY3d at 220-221). Here, the court credited the
testimony of the victims’ attorney that the settlement was limited to
damages for pain and suffering and did not encompass any out-of-pocket
costs incurred by the victims. Indeed, on this record we conclude
that to allow an offset, which would effectively eliminate
restitution, would result in defendant avoiding “pay[ing] his . . .
debt to society” (Horne, 97 NY2d at 411).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
