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

11
KA 12-01268
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STACEY L. WILLIAMS, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., 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 May 23, 2012. The order directed defendant to pay
restitution to the victims of two burglaries.

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

     Memorandum: Defendant appeals from an order directing him to pay
restitution to the victims of two burglaries. On a prior appeal, we
concluded that County Court had improperly delegated its
responsibility to conduct a restitution hearing to its court attorney
(People v Williams, 64 AD3d 1136, 1137). We therefore modified the
order by vacating the amount of restitution ordered, and we remitted
the matter for a new hearing to determine the amount of restitution in
compliance with Penal Law § 60.27 (id.). The only evidence presented
by the People at the hearing on remittal was the transcript of the
hearing previously conducted by the court attorney in 2006. Despite
the court’s error in delegating its responsibility to the court
attorney in 2006, we nevertheless conclude that the transcript of the
sworn testimony of the victims taken nearly six years earlier, which
was subject to cross-examination, constitutes “relevant evidence” (CPL
400.30 [4]). The statute expressly provides that relevant evidence
may be received “regardless of its admissibility under the
exclusionary rules of evidence” (id.; see People v Tzitzikalakis, 8
NY3d 217, 221; People v Wilson, 108 AD3d 1011, 1013-1014). We further
conclude that, contrary to defendant’s contention, the court properly
determined that the People established the out-of-pocket losses of the
respective victims by the requisite preponderance of the evidence (see
generally Tzitzikalakis, 8 NY3d at 221; People v Horne, 97 NY2d 404,
                               -2-                   11
                                              KA 12-01268

410-411).




Entered:    February 7, 2014         Frances E. Cafarell
                                     Clerk of the Court
