People v. Joseph

Jun 5, 2009
Appeal No. 1
Versions:63 A.D.3d 1658
879 N.Y.S.2d 770

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20). The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to establish that defendant entered the building with the intent to commit a crime therein (see People v Gates, 170 AD2d 971 [1991], lv denied 78 NY2d 922 [1991]). Defendant‘s further challenges to the legal sufficiency of the evidence are not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for our review his contentions that County Court‘s Sandoval ruling constituted an abuse of discretion (see People v Robles, 38 AD3d 1294, 1295 [2007], lv denied 8 NY3d 990 [2007]), and that he was denied a fair trial by the prosecutor‘s allegedly improper remarks on summation (see People v Searles, 28 AD3d 1205 [2006], lv denied 7 NY3d 817 [2006]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.P., Smith, Fahey, Carni and Green, JJ.

It is hereby ordered that the order so appealed from is unanimously modified on the law by vacating the amount of restitution ordered and as modified the order is affirmed, and the matter is remitted to Genesee County Court for a new hearing in accordance with the following memorandum: On appeal from an order directing him to pay restitution in the amount of $551.82 plus a 5% surcharge, defendant contends that County Court erred in delegating its responsibility to conduct the restitution hearing to its court attorney, who prepared a preliminary fact-finding report that was adopted by the court. We agree, for the same reason as that set forth in our decision in People v Bunnell (59 AD3d 942 [2009], amended on rearg 63 AD3d 1671 [2009]). We note that, although defendant failed to preserve his contention for our review (see CPL 470.05 [2]), “preservation is not required inasmuch as the ‘essential nature’ of the right to be sentenced as provided by law” is implicated (People v Fuller, 57 NY2d 152, 156 [1982]). We therefore modify the order by vacating the amount of restitution ordered, and we remit the matter to County Court for a new hearing to determine the amount of restitution in compliance with Penal Law § 60.27. Present—Martoche, J.P., Smith, Fahey, Carni and Green, JJ.