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SENTENCING COURT MUST DIRECT THE MANNER IN WHICH RESTITUTION IS TO BE PAID, MATTER REMITTED, ISSUE SURVIVES A WAIVER OF APPEAL AND THE FAILURE TO PRESERVE THE ERROR (FOURTH DEPT).

The Fourth Department determined the sentencing court’s failure to direct how the restitution is to be paid required remittal. This illegal sentence issue is not foreclosed by a waiver of appeal or the failure to preserve the issue:

… [T]here is merit to defendant’s contention that the restitution component of his sentence must be vacated because the court failed to direct the manner of payment, in violation of CPL 420.10 (1). Defendant’s contention is a challenge to the legality of the sentence and thus survives his waiver of the right to appeal … and, based upon “the essential nature of the right to be sentenced as provided by law,” we review that contention notwithstanding defendant’s failure to raise it at sentencing … . Although we affirm the amount of restitution ordered by the court, we modify the judgment by vacating that part of the sentence ordering restitution … , and we remit the matter to County Court to fix the manner in which the restitution is to be paid. People v Lamagna, 2019 NY Slip Op 04849, Fourth Dept 6-14-19

 

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