| People v Rodriguez |
| 2010 NY Slip Op 03969 [73 AD3d 815] |
| May 4, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Rodriguez, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Ilisa T.Fleischer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered April 24, 2008, convicting him of assault in the first degree and assault in thesecond degree, upon a jury verdict, and imposing sentence, including restitution in the sum of$17,274.40.
Ordered that the judgment is modified, on the law, by vacating the provision of the sentencedirecting the defendant to pay restitution in the sum of $17,274.40; as so modified, the judgmentis affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a hearing andnew determination concerning the proper amount of restitution and the manner of paymentthereof.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to disprove thedefendant's justification defense and to establish his guilt of assault in the first and seconddegrees beyond a reasonable doubt (see Penal Law § 35.15; People v Hall, 65 AD3d 1377[2009]; People v Pickens, 60 AD3d699, 701 [2009]; People vChung, 39 AD3d 558 [2007]; People v Wimberly, 19 AD3d 518, 519 [2005]; People vBriggs, 285 AD2d 514 [2001]).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The trial court properly denied the defendant's request to charge assault in the third degree(see Penal Law § 120.00 [1]) as a lesser-included offense of assault in the seconddegree (see Penal Law § 120.05 [4]). Viewing the evidence in the light mostfavorable to the defendant, there is no reasonable view of the evidence that would support afinding that he assaulted the victims but did not use a deadly weapon or dangerous instrument(see People v Hercules, 47 AD3d835 [2008]; People v Vaughn,36 AD3d 434, 436 [2007], cert denied 552 US 1284 [2008];People v Smith, 235 AD2d 558 [1997]; CPL 300.50 [1]), or that the injury the defendantcaused was anything less than a serious physical injury (see People v Figueroa, 57 AD3d 1003, 1003-1004 [2008];People v Eagleston, 194 AD2d 623 [1993]).[*2]
Furthermore, the trial court properly denied thedefendant's request for a jury charge on the justifiable use of "physical force" (Penal Law§ 35.25). Viewed in the light most favorable to the defendant, no reasonable view of theevidence supported a finding that the force he used was anything less than deadly physical force(see People v Magliato, 68 NY2d 24, 29 [1986]; People v Figueroa, 57 AD3d at1004; People v Beckford, 49 AD3d547, 548 [2008]; People v Hyc, 240 AD2d 431, 432 [1997]; Penal Law §10.00 [11]; § 35.15 [1]).
The defendant's contention that the trial court improperly allowed the People to admit hisgrand jury testimony as part of the case-in-chief is unpreserved for appellate review (seeCPL 470.05 [2]) since the defendant's objection at trial was based upon grounds different fromthose raised on appeal (see People vClas, 54 AD3d 770 [2008]; People v Saladana, 208 AD2d 872, 873 [1994]). Inany event, the grand jury testimony was properly admitted as an admission by the defendant(see People v Spurgeon, 264 AD2d 401 [1999]; People v Rose, 224 AD2d 643[1996]; People v Rodriguez, 191 AD2d 597, 598 [1993]; People v Koestler, 176AD2d 1207, 1208 [1991]).
Contrary to the defendant's contention, the fact that the sentence imposed after trial wasgreater than the sentence offered during plea negotiations is no indication that the defendant waspunished for asserting his right to proceed to trial (see People v Pena, 50 NY2d 400, 411[1980], cert denied 449 US 1087 [1981]; People v Brock, 69 AD3d 644 [2010]; People v DeHaney, 66 AD3d1040, 1041 [2009]; People vGarcia, 66 AD3d 699, 701 [2009]; People v Smith, 49 AD3d 904, 906 [2008]). Moreover, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
However, we agree that the Supreme Court erred in relying upon a preliminary fact-findingreport prepared by the Nassau County Probation Department in fixing the amount of restitution."While the sentencing court ' "acted properly in employing the Probation Department as apreliminary fact finder to ascertain the appropriate amount of restitution . . . thecourt should have conducted a hearing upon receipt of the Probation Department's report" ' "since the trial record and presentence report did not contain sufficient information to accuratelydetermine the proper amount of restitution (People v Jackson, 261 AD2d 636, 637-638[1999], quoting People v James, 186 AD2d 679, 680 [1992] [internal quotation marksomitted]; see Penal Law § 60.27 [2]; People v Myron, 28 AD3d 681, 684 [2006], cert denied549 US 1326 [2007]; People v Vella, 176 AD2d at 768-769). Accordingly, the mattermust be remitted to the Supreme Court, Nassau County, for a hearing on the proper amount ofrestitution and the manner in which it is to be paid (see Penal Law § 60.27 [2]).Fisher, J.P., Dillon, Dickerson and Eng, JJ., concur.