92 A.D.3d 1089
N.Y. App. Div.
2012

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DANIEL W. DEPERNO, Appellant.

Appellate Division of the Supreme Court of New York, Third Department

February 16, 2012

937 N.Y.S.2d 765

[2001]),2 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 NY2d 996, 998 [1993]; compare People v Kim, 91 NY2d 407, 411 [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 NY2d 154, 157-158 [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 AD3d 1094, 1097 [2007], lv denied 10 NY3d 964 [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.

Mercure, A.P.J., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order is reversed, on the law, and the August 2006 restitution order reinstated.

McCarthy, J.

Defendant contends, and the People concede, that the sentences imposed were illegal. A defendant must be sentenced according to the law as it existed at the time that he or she committed the offense (see People v Sawinski, 246 AD2d 689, 692 [1998], lv denied 91 NY2d 930 [1998]). In 2007, the Legislature categorized rape in the second degree and criminal sexual act in the second degree as violent felony offenses and enacted the felony sex offender statute (see L 2007, ch 7, §§ 30, 32). Because defendant committed the crimes at issue here in 2006—prior to the Legislature‘s amendments to the relevant statutes—the prison sentences for these crimes had to be indeterminate terms, and postrelease supervision was not authorized (see People v Sapienza, 75 AD3d 768, 772-773 [2010]). We therefore vacate the illegal sentences that were imposed. As the agreed-upon sentences cannot legally be imposed, we remit to County Court for resentencing in accordance with the relevant statutes, with the opportunity for either party to withdraw from the plea agreement (see People v Cameron, 83 NY2d 838, 840 [1994]; People v Ryan, 83 AD3d 1128, 1130 [2011]).

Mercure, A.P.J., Rose, Spain and Malone Jr., JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentences imposed; matter remitted to the County Court of Cortland County for further proceedings not inconsistent with this Court‘s decision; and, as so modified, affirmed.

Notes

2
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.