| People v Craft |
| 2008 NY Slip Op 10270 [57 AD3d 1388] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Shane W. Craft,Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered March 16,2006. The judgment convicted defendant, upon a jury verdict, of gang assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byvacating the amount of restitution ordered and as modified the judgment is affirmed, and the matter isremitted to Niagara County Court for a hearing in accordance with the following memorandum:Defendant appeals from a judgment convicting him, upon a jury verdict, of gang assault in the firstdegree (Penal Law § 120.07). Although defendant's contention that Penal Law § 120.07is unconstitutionally vague is properly before us inasmuch as the requisite notice of that contention wasprovided to the Attorney General (see Executive Law § 71; cf. People v McKeehan, 2 AD3d1421, 1422 [2003], lv denied 3 NY3d 644 [2004]), we conclude that it lacks merit.Contrary to defendant's contention, the phrase "aided by two or more persons actually present"contained in the statute has a plain meaning that excludes constructive presence, and the statute is notvague as applied to defendant (Penal Law § 120.07; see People v Hedgeman, 70NY2d 533, 538-540 [1987]; see generally People v Stuart, 100 NY2d 412, 422-423[2003]).
Contrary to defendant's further contentions, the evidence is legally sufficient to support theconviction and the verdict is not against the weight of the evidence (see People v East, 284AD2d 962, 962-963 [2001], lv denied 97 NY2d 641 [2001]; see generally People v Danielson, 9 NY3d342, 348-349 [2007]). We reject the contention of defendant that there was no corroboration ofthe testimony of his accomplices (see CPL 60.22 [1]). Indeed, the necessary corroborationwas provided by evidence that defendant and his accomplices sought a confrontation, that defendantwas wounded when he returned from the scene of the assault, and that defendant's blood was found atthe scene of the assault. "Once the statutory minimum pursuant to CPL 60.22 (1) was met, it was forthe jurors to decide whether the corroborating [evidence] satisfied them that the accomplices weretelling the truth" (People v Pierce, 303 AD2d 966, 966 [2003], lv denied 100 NY2d565 [2003]).
Also contrary to the contention of defendant, County Court properly refused to suppressstatements that he made to the police. The evidence presented at the suppression hearing establishedthat the police lawfully stopped defendant's vehicle (see People v Robinson, 97 NY2d 341,348 [2001]; People v White, 27 AD3d1181 [2006]), and that defendant's statements made to the [*2]police at that time were not in response to custodial interrogation (seePeople v Bennett, 70 NY2d 891, 893-894 [1987]; People v Morales, 65 NY2d 997[1985]). Rather, the statements were made in response to inquiry " 'necessary for providing fordefendant's physical [condition and] needs' " (People v Topolski, 28 AD3d 1159, 1160 [2006], lv dismissed 6NY3d 898 [2006], lv denied 7 NY3d 764, 795 [2006]). The evidence presented at thesuppression hearing further established that defendant's subsequent statements were made afterdefendant had waived his Miranda rights (see People v Burnett, 41 AD3d 1201 [2007]).
We reject the further contention of defendant that the court erred in admitting testimony concerninghis uncharged criminal activity. That testimony " 'was relevant to defendant's motive and. . . its prejudicial effect did not outweigh its probative value' " (People v Wright, 38 AD3d 1232, 1234[2007], lv denied 9 NY3d 853, reconsideration denied 884 [2007]; see People v Burkett, 12 AD3d 1196,1196-1197 [2004], lv denied 4 NY3d 762 [2005]). Defendant's contention that the courterred in amplifying its original jury instructions in response to a jury question also is without merit,inasmuch as the further instruction "constituted 'a meaningful response to the jury's request forinformation' " (People v Jones, 52 AD3d1252, 1252 [2008], lv denied 11 NY3d 738 [2008]; see CPL 310.30; People v Santi, 3 NY3d 234, 248[2004]).
Defendant failed to preserve for our review his further contention that the court abused itsdiscretion in failing to afford him youthful offender status (see People v Fowler, 28 AD3d 1183 [2006], lv denied 7 NY3d788 [2006]), and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). Defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]), and the sentence isnot unduly harsh or severe.
We agree with defendant, however, that he did not consent to the amount of restitution or waive hisright to a hearing on that issue, and "the presentence report and unsworn victim impact statementconstitute an insufficient basis for the court's finding with respect to the amount of restitution ordered"(People v Melendez, 291 AD2d 887, 888 [2002], lv denied 98 NY2d 639 [2002];see generally People v Consalvo, 89 NY2d 140, 145-146 [1996]). We therefore modify thejudgment by vacating the amount of restitution ordered, and we remit the matter to County Court for ahearing to determine the amount of restitution. Present—Smith, J.P., Centra, Lunn, Fahey andGreen, JJ.