| People v Harris |
| 2010 NY Slip Op 03467 [72 AD3d 1110] |
| April 27, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nykiya Harris, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Michael J. Balchof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz,J.), rendered December 30, 2008, convicting her of arson in the second degree, arson in the thirddegree, arson in the fourth degree, burglary in the second degree, burglary in the third degree,and criminal mischief in the fourth degree, upon a jury verdict, and driving with a suspendedlicense, upon her plea of guilty, and sentencing her to a determinate term of imprisonment of fiveyears on the conviction of arson in the second degree, followed by a period of three years ofpostrelease supervision, a determinate term of imprisonment of 3½ years on the convictionof arson in the third degree, followed by a period of two years of postrelease supervision, adefinite term of imprisonment of one year on the conviction of arson in the fourth degree,followed by a period of two years of postrelease supervision, a determinate term ofimprisonment of 3½ years on the conviction of burglary in the second degree, followed bya period of two years of postrelease supervision, a definite term of imprisonment of one year onthe conviction of burglary in the third degree, followed by a period of two years of postreleasesupervision, and a definite term of imprisonment of one year on the conviction of criminalmischief in the fourth degree, all to run concurrently with each other, and time served on theconviction of driving with a suspended license, and directing her to make restitution and to filetwo confessions of judgment with the Clerk of the Supreme Court, Nassau County, as acomponent of restitution.
Ordered that the judgment is modified, on the law, (1) by vacating the convictions of arsonin the second degree and arson in the fourth degree, vacating the sentences imposed thereon, anddismissing those counts of the indictment, (2) by vacating the sentences imposed on theconvictions of arson in the third degree and burglary in the second degree, (3) by vacating theperiod of postrelease supervision imposed on the conviction of burglary in the third degree, and(4) by vacating the requirement that the defendant file two confessions of judgment as acomponent of restitution and vacating any confessions of judgment that have been filed; as somodified, the judgment is affirmed, and the matter is remitted to the Supreme Court, NassauCounty, for resentencing on the convictions of arson in the third degree and burglary in thesecond degree.
The defendant contends that the prosecution failed to adduce legally sufficient evidence tosupport her conviction of arson in the second degree, which requires proof that "another personwho is not a participant in the crime is present in [the] building . . . at the time" ofthe fire (Penal Law § 150.15 [a]). [*2]Evidence adduced attrial established that the subject fire was set in a medical office where the defendant had workedfor 2½ years. The office was located on the ground floor of a building in Rockville Centre,which contained residential apartments on the upper two floors. A resident of one of theapartments, who was walking outside, noticed the fire and called 911. While this evidence wassufficient to establish that the defendant was aware of circumstances which would render thepresence of another person in the building a reasonable possibility (see Penal Law§ 150.15 [b]; People v Burns, 68 AD3d 1246, 1248 [2009]; People vRegan, 21 AD3d 1357, 1358 [2005]; People v Jae Lee, 251 AD2d 682 [1998]), theevidence was legally insufficient to prove that a resident of one of the apartments was actuallypresent in the building when the fire was set (cf. People v Grogan, 192 AD2d 719, 720[1993]; People v Trepanier, 84 AD2d 374 [1982]; Payne v Jones, 638 F Supp669 [1986], affd 812 F2d 712 [1987]). Accordingly, the defendant's conviction of arsonin the second degree and the sentence imposed thereon must be vacated, and that count of theindictment dismissed.
As the defendant contends, and the People correctly concede, the defendant's conviction ofarson in the fourth degree under Penal Law § 150.05 must be vacated, and that count ofthe indictment dismissed. Under the circumstances presented here, the count of arson in thefourth degree was an inclusory concurrent count of arson in the third degree under Penal Law§ 150.10 (see CPL 300.40 [4]; People v Grier, 37 NY2d 847, 848 [1975]).
The defendant failed to preserve for appellate review her contention that the Supreme Courtdid not adequately instruct the jurors as to note taking (see People v Ramos, 306 AD2d295 [2003]; People v Caraballo, 221 AD2d 553, 554 [1995]). In any event, the SupremeCourt provided proper instructions as to this matter, both at the beginning of the trial and prior tothe jury's deliberations (see People v Hues, 92 NY2d 413 [1998]; People vDiLuca, 85 AD2d 439 [1982]; 22 NYCRR 220.10 [c]).
The defendant's contention that the Supreme Court improperly failed to conduct a hearing todetermine the proper amount of restitution is unpreserved for appellate review (see CPL470.05 [2]; People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Baez, 52AD3d 840 [2008]). In any event, this contention is without merit. In making its finding withrespect to a victim's actual out-of-pocket loss, a court must conduct a hearing only "[i]f therecord does not contain sufficient evidence to support such finding or upon request by thedefendant" (Penal Law § 60.27 [2]). Here, the defendant did not request a hearing, and theSupreme Court properly made a finding of the amount of actual loss sustained by the victims,based upon sufficient evidence in the record (see People v Kim, 91 NY2d 407, 410-411[1998]; People v Lawson, 65 AD3d 1380 [2009]; People v Charles, 309 AD2d873, 874 [2003]). Similarly, the defendant's contention that the Supreme Court was required todetermine her ability to pay is unpreserved for appellate review and, in any event, without merit(see People v Henry, 64 AD3d 804, 807 [2009]). In the event of her future inability topay, the defendant may seek resentencing pursuant to CPL 420.10 (5) (id.; see Peoplev Holden, 244 AD2d 961, 962 [1997]).
The Supreme Court erred, however, in directing the defendant to file two confessions ofjudgment as a component of restitution. Statutory provisions applicable to the collection ofrestitution do not authorize the execution and filing of a confession of judgment as a condition ofthe sentence (see CPL 420.10). Accordingly, we modify the sentence by deleting therequirement that the defendant file confessions of judgment, and vacate any confession ofjudgment which may have been filed pursuant to that order (see CPL 470.15 [4] [c]).
As the People correctly acknowledge, this matter must be remitted to the Supreme Court,Nassau County, for resentencing on the defendant's convictions of arson in the third degree andburglary in the second degree. With respect to the count of arson in the third degree (seePenal Law § 150.10), the Supreme Court imposed a determinate sentence of 3½years of imprisonment, followed by a period of two years of postrelease supervision. However,the Supreme Court was required to impose an indeterminate sentence upon the defendant'sconviction of that crime, since arson in the third degree is not a violent felony offense for whicha determinate sentence may be imposed (see Penal Law § 70.00 [1], [2]). Further,a period of postrelease supervision is not authorized in connection with an indeterminatesentence (see Penal Law § 70.45; People v Watts, 309 AD2d 628, 629[2003]). With respect to the count of burglary in the second degree (see Penal Law§ 140.25), the Supreme Court properly imposed a [*3]determinate sentence since that crime is defined as a class C violentfelony offense (see Penal Law § 70.00 [1]; § 70.02 [1] [b]; [2] [a]), forwhich postrelease supervision must be imposed (see Penal Law § 70.45 [2] [f]).The period of postrelease supervision imposed in connection with that count, however, was notclear, due to a conflict between the minutes of the sentencing hearing and the Sentence andCommitment Sheet filed with the Clerk of the Supreme Court. Accordingly, we remit this matterto the Supreme Court, Nassau County, for resentencing on the defendant's convictions of arsonin the third degree and burglary in the second degree.
In addition, the Supreme Court erred in imposing a term of postrelease supervision as part ofthe sentence on the defendant's conviction of burglary in the third degree. The Supreme Courtimposed only a definite term of imprisonment of one year on the conviction of that crime(see Penal Law § 70.00 [4]; § 70.15 [1]), and not a determinate term ofimprisonment. Since a period of postrelease supervision is only required to be imposed inconnection with a determinate term of imprisonment (see Penal Law § 70.45 [1]),and may not be imposed in connection with a definite term of imprisonment, the Supreme Courterred in imposing a term of postrelease supervision with respect to that definite sentence (seePenal Law § 70.45; People v Murdaugh, 38 AD3d 918, 920 [2007]; cf.People v Watts, 309 AD2d at 629). Accordingly, we vacate so much of the judgment asimposed a period of postrelease supervision as part of the sentence on the conviction of burglaryin the third degree.
The defendant's remaining contention is without merit. Rivera, J.P., Angiolillo, Balkin andLeventhal, JJ., concur.