Opinion
2012-02-16
The PEOPLE of the State of New York, Respondent, v. Christopher MORRISHAW, Appellant.
Adam G. Parisi, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Adam G. Parisi, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
Before: MERCURE, Acting P.J., PETERS, MALONE JR., KAVANAGH and McCARTHY, JJ.
PETERS, J.
Appeal from an order of the County Court of Schenectady County (Drago, J.), entered July 8, 2009, which granted the application of Light's Funeral Home to modify a prior order of restitution and direct defendant to pay such restitution to Light's Funeral Home.
In August 2006, defendant pleaded guilty to murder in the second degree. As part of his sentence, defendant was ordered to pay restitution in the amount of $5,970 to the mother of the victim to reimburse her for funeral expenses. In April 2009, Light's Funeral Home (hereinafter the funeral home) sent a letter to County Court informing it that the victim's mother had not paid the funeral bill and requesting an order directing defendant to make restitution payments to it instead of the victim's mother. County Court thereafter vacated the initial restitution order and issued an order directing that restitution be paid to the funeral home in the amount of $5,970. Defendant appeals.
Although, as a general rule, restitution orders are not appealable ( see CPL 450.10; People v. Naumowicz, 76 A.D.3d 747, 749 n. 1, 907 N.Y.S.2d 353 [2010]; People v. Russo, 68 A.D.3d 1437, 1437 n. 2, 891 N.Y.S.2d 213 [2009] ), we deem the restitution order here to be an appealable amendment to the judgment of conviction ( see People v. Naumowicz, 76 A.D.3d at 749 n. 1, 907 N.Y.S.2d 353; People v. Russo, 68 A.D.3d at 1437 n. 2, 891 N.Y.S.2d 213).
Assuming, without deciding, that the nearly 2 1/2–year delay between defendant's sentencing and the modification of the restitution order did not divest County Court of jurisdiction over defendant ( see People v. Naumowicz, 76 A.D.3d 747, 749, 907 N.Y.S.2d 353 [2010]; People v. Knowles, 293 A.D.2d 770, 771, 740 N.Y.S.2d 151 [2002]; People v. Swiatowy, 280 A.D.2d 71, 73, 721 N.Y.S.2d 185 [2001], lv. denied 96 N.Y.2d 868, 730 N.Y.S.2d 43, 754 N.E.2d 1126 [2001] ),
we agree with defendant's contention that the court did not have the authority to require him to make restitution to the funeral home. Pursuant to Penal Law § 60.27(1), County Court is authorized to order restitution to the “victim” of a crime as part of the sentence imposed. Here, the funeral home is not a “victim” of the crime since the expenses for which it seeks reimbursement did not arise from a “legal obligation[ ] ... directly and causally related to the crime,” but rather was voluntarily incurred ( People v. Cruz, 81 N.Y.2d 996, 998, 599 N.Y.S.2d 533, 615 N.E.2d 1017 [1993]; compare People v. Kim, 91 N.Y.2d 407, 411, 671 N.Y.S.2d 420, 694 N.E.2d 421 [1998] [insurance company was classified a “victim” because it was legally obligated under its insurance contract to pay for the victim's medical expenses for treatment of injuries caused by the defendant's crimes]; People v. Hall–Wilson, 69 N.Y.2d 154, 157–158, 513 N.Y.S.2d 73, 505 N.E.2d 584 [1987] [the defendant's employer was entitled to restitution as a “victim” for the amount that the employer was legally obligated to pay to its customer because of the fire set by the defendant while acting in the scope of his employer's business]; People v. Russell, 41 A.D.3d 1094, 1097, 838 N.Y.S.2d 710 [2007], lv. denied 10 N.Y.3d 964, 863 N.Y.S.2d 148, 893 N.E.2d 454 [2008] [same] ). Nor can the funeral home be deemed a “representative” of the crime victim to whom restitution may be ordered ( Penal Law § 60.27[4][b] ), as it is not “one who represents or stands in the place of [the victim], [such as] an agent, an assignee, an attorney, a guardian, a committee, a conservator, a partner, a receiver, an administrator, an executor or an heir of another person, or a parent of a minor” ( Executive Law § 621[6] ). Rather, the funeral home is a creditor of the victim's mother, having voluntarily contracted with her to provide services. Seeking payment for its services, the funeral home's resort was to a civil action against the victim's mother for breach of contract, not the criminal courts. As County Court lacked the authority to order restitution to the funeral home, the July 2009 restitution order must be reversed and the August 2006 order of restitution reinstated.
At the hearing before County Court, counsel for the funeral home affirmed that he had been informed by the victim's mother shortly after defendant's sentencing in 2006 that she had no intention of paying the bill for the funeral expenses, yet failed to make the instant “application” until April 2009.
ORDERED that the order is reversed, on the law, and the August 2006 restitution order reinstated.