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

793
KA 14-00513
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALBERT J. WEBBER, DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (RICHARD W. YOUNGMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wayne County Court (John B. Nesbitt,
J.), entered January 15, 2014. The order directed defendant to pay
restitution in the amount of $10,330.

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

     Memorandum: Defendant was convicted upon his plea of guilty of,
inter alia, criminal possession of stolen property in the fifth degree
(Penal Law § 165.40). County Court sentenced him to a term of
incarceration and scheduled a hearing to determine the amount of
restitution to be imposed. Defendant did not appeal from the original
judgment of conviction and now appeals from the order of restitution
entered following a hearing. We note at the outset that, because the
court bifurcated the sentencing proceeding by severing the issue of
restitution for a separate hearing, defendant properly appeals as of
right from the order of restitution (see People v Connolly, 100 AD3d
1419, 1419; People v Brusie, 70 AD3d 1395, 1396).

     We agree with defendant that the court erred in imposing
restitution based on the evidence presented at the restitution
hearing. “Restitution may be based only on ‘the offense for which a
defendant was convicted, as well as any other offense that is part of
the same criminal transaction or that is contained in any other
accusatory instrument disposed of by any plea of guilty’ ” (People v
Visser, 256 AD2d 1106, 1107, quoting Penal Law § 60.27 [4] [a]). Upon
our review of the record, we conclude that the testimony of the owner
of the stolen property that was the subject of the restitution hearing
was insufficient to establish that such stolen property was part of
the same criminal transaction as the stolen property that was the
subject of defendant’s plea of guilty, i.e., two pieces of blue
painted steel. Indeed, no evidence was presented at the hearing
                                 -2-                           793
                                                         KA 14-00513

establishing that defendant’s acquisition of the two pieces of blue
painted steel found in his possession was part of the same criminal
transaction involving the theft of numerous other items for which
restitution was ordered. We conclude that “the court erred in
imposing restitution arising from a charge of [larceny] because that
charge was not contained in the indictment, nor was it related to an
offense that was ‘part of the same criminal transaction or . . .
contained in any other accusatory instrument disposed of by’
defendant’s plea of guilty to the offense on appeal” (People v Moore,
124 AD3d 1386, 1387). We therefore vacate the order on appeal.




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
