| People v Rivera |
| 2010 NY Slip Op 01274 [70 AD3d 1484] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carlos L.Rivera, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedSeptember 15, 2008. The judgment convicted defendant, upon a jury verdict, of arson in thesecond degree, assault in the second degree (two counts), reckless endangerment in the firstdegree (two counts), criminal mischief in the second degree, burglary in the second degree,assault in the third degree and menacing in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, arson in the second degree (Penal Law § 150.15). Defendant failed to preservefor our review his contention that he was denied a fair trial when the prosecutor failed to correctthe testimony of a witness who stated that he had not been offered a benefit for his testimony,and compounded that error by making misleading comments during summation concerning thatwitness's testimony (see People vHendricks, 2 AD3d 1450 [2003], lv denied 2 NY3d 762 [2004]). In any event,we conclude that the error is harmless inasmuch as there is no reasonable possibility that it mighthave contributed to the verdict (see People v Pressley, 91 NY2d 825, 827 [1997]; cf. People v Colon, 13 NY3d 343,349-350 [2009]). Defendant also failed to preserve for our review his contention that CountyCourt erred in instructing the jury with respect to the counts charging him with assault in thesecond degree (Penal Law § 120.05 [6]), burglary in the second degree (§ 140.25[2]) and reckless endangerment in the first degree (§ 120.25) under the seventh count ofthe indictment (see CPL 470.05 [2]; People v Pettine, 50 AD3d 1517 [2008]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant's further contention that the evidence is legally insufficientto support the conviction of two counts of assault in the second degree, one count of menacing inthe second degree (Penal Law § 120.14 [1]), and reckless endangerment in the first degreeunder the seventh count of the indictment is also unpreserved for our review (see People vGray, 86 NY2d 10, 19 [1995]).
We reject the contention of defendant that he was denied effective assistance of counsel."[D]efendant failed to meet his burden of demonstrating the absence of strategic or otherlegitimate explanations for [defense] counsel's alleged shortcomings" (People v Childres, 60 AD3d 1278,1278 [2009], [*2]lv denied 12 NY3d 913 [2009] [internalquotation marks omitted]). Finally, defendant correctly concedes that he failed to preserve forour review his further contention that, based on Penal Law § 60.27 (5) (a), the court wasnot authorized to order restitution in excess of $15,000 (see generally People v Peck, 31 AD3d 1216 [2006], lv denied9 NY3d 992 [2007]; People vMelino, 16 AD3d 908, 911 [2005], lv denied 5 NY3d 791 [2005]). In any event,we conclude that the court properly ordered restitution in an amount sufficient to compensate thevictims for their "actual out-of-pocket loss" caused by defendant's criminal conduct (Penal Law§ 60.27 [1]; see generally People v Horne, 97 NY2d 404, 412 [2002]; People v Denno, 56 AD3d 902,903-904 [2008], lv denied 12 NY3d 757 [2009]). In his brief, defendant failed tochallenge the restitution order on any other ground, including the court's failure to conduct ahearing on the amount of restitution or the recipients thereof. We thus conclude that he hasabandoned any such challenges (see generally People v Purcelle, 282 AD2d 824, 825[2001]; People v Mathews, 176 AD2d 1135, 1136 [1991]).
All concur except Hurlbutt, J.P., who is not participating, and Fahey, J., who dissents in partand votes to modify in accordance with the following memorandum.
Fahey, J. (dissenting in part). I respectfully dissent in part and would modify the judgmentbecause, in my view, County Court erred in ordering defendant to pay restitution totaling$402,801, including a surcharge, without conducting a hearing. I note at the outset that, althoughdefendant concedes that he failed to preserve his contention for our review (see CPL470.05 [2]), I conclude that his contention warrants the exercise of our power to review thecontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Pursuant to Penal Law § 60.27 (1), a court may "require the defendant to makerestitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss causedthereby." Further, section 60.27 (5) (a) provides that, when a defendant is convicted of a felony,the amount of restitution shall not exceed $15,000. The court may in its discretion exceed thatlimit, however, provided "that the amount in excess [is] limited to the return of the victim'sproperty, including money, or the equivalent value thereof" (§ 60.27 [5] [b]). Arsonvictims are entitled to restitution for out-of-pocket expenses incurred as a result of a fire (seegenerally People v Hall-Wilson, 69 NY2d 154, 156-158 [1987]; People v Wojes,306 AD2d 754, 758 [2003], lv denied 100 NY2d 600 [2003]).
In the absence of a restitution hearing we are, under these circumstances, unable todetermine the proper amount of restitution. Indeed, without a hearing there is no evidence in therecord to support the court's determination to exceed the statutory limit for restitution. I thereforewould modify the judgment by vacating the amount of restitution ordered, and I would remit thematter to County Court for a hearing to determine the amount of restitution.Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Gorski, JJ.