Friday, September 30, 2011

Leave To Appeal Generally Required to Challenge Restitution Order

The Appellate Division, Fourth Department, in People v LaVilla (4th Dept 8/30/11) has again held that an exception to the general rule that cannot be appealed as of right is when the restitution hearing was bifurcated from sentencing:

“[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case . . . Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of restitution for a separate hearing, and thus ‘defendant may properly appeal as of right from both the judgment of conviction . . . and the sentence as amended . . ., directing payment of restitution . . ., [with] no need to seek leave to appeal from [the] order of restitution’ ” (People v Brusie, 70 AD3d 1395, 1396).

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