| People v Turner |
| 2012 NY Slip Op 04478 [96 AD3d 1392] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jessie A.Turner, Appellant. |
—[*1]
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedMarch 2, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree (three counts), robbery in the second degree (eight counts) and grand larceny in the thirddegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the surcharge imposed on the amount of restitution ordered from 10% to 5% and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofthree counts of robbery in the first degree (Penal Law § 160.15 [4]), eight counts ofrobbery in the second degree (§ 160.10 [1]), and two counts of grand larceny in the thirddegree (former § 155.35). Defendant contends that County Court erred in characterizingthe stop of defendant's vehicle by the police as a "stop and question" for which the policerequired only reasonable suspicion inasmuch as defendant was ultimately arrested, for which thepolice required probable cause. "Because that contention was not raised in defendant's pretrialomnibus motion or at the suppression hearing, it has not been preserved for our review"(People v King, 284 AD2d 941 [2001], lv denied 96 NY2d 920 [2001]; seePeople v Coleman, 56 NY2d 269, 274 [1982]; People v Gonzalez, 55 NY2d 887,888 [1982]).
Defendant further contends that the court erred in responding to a jury note submitted duringdeliberations on the issue whether the victims named separately in the three counts of robbery inthe first degree had to be the persons who perceived that a participant in the robbery displayed"what appear[ed] to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" (PenalLaw § 160.15 [4]). We reject that contention. The court instructed the jury that "theperception of the use or threatened use of a gun by any person present at the robbery is sufficient.It need not be limited to the particular victim named in that count." Given that the statute merelyprovides that the display need only be made at some point "in the course of the commission ofthe crime or of immediate flight therefrom" and does not specify who must view the display(§ 160.15), we conclude that the court's response to the jury note was proper (seegenerally People v Williams, 286 AD2d 918, 918 [2001], lv denied 97 NY2d 763[2002]).[*2]
As defendant contends and the People correctly concede,however, the court erred in imposing a restitution surcharge of 10%. Penal Law § 60.27 (8)provides that the surcharge on the amount of restitution or reparation ordered shall not exceed5% unless there is a showing "that the actual cost of the collection and administration ofrestitution or reparation in a particular case exceeds five percent of the entire amount of thepayment or the amount actually collected." Here, the record is devoid of any such evidence, tosupport the court's imposition of a 10% surcharge. We therefore modify the judgmentaccordingly. We have reviewed defendant's remaining contentions and conclude that nonerequires reversal or further modification of the judgment. Present—Scudder, P.J., Centra,Lindley, Sconiers and Martoche, JJ.