The People, etc., respondent, v. Anthony Rodriguez, appellant. (2010)

Submitted-April 6, 2010

DECISION & ORDER

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 the second 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 sentence directing the defendant to pay restitution in the sum of $17,274.40;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination concerning the proper amount of restitution and the manner of payment thereof.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to disprove the defendant's justification defense and to establish his guilt of assault in the first and second degrees beyond a reasonable doubt (see Penal Law § 35.15;  People v. Hall, 65 AD3d 1377;  People v. Pickens, 60 AD3d 699, 701;  People v. Chung, 39 AD3d 558;  People v. Wimberly, 19 AD3d 518, 519;  People v. Briggs, 285 A.D.2d 514).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946;  People v. Bleakley, 69 N.Y.2d 490, 495).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

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 second degree (see Penal Law § 120.05[4] ).   Viewing the evidence in the light most favorable to the defendant, there is no reasonable view of the evidence that would support a finding that he assaulted the victims but did not use a deadly weapon or dangerous instrument (see People v. Hercules, 47 AD3d 835;  People v. Vaughn, 36 AD3d 434, 436, cert denied US, 128 S Ct 1711;  People v. Smith, 235 A.D.2d 558;  CPL 300.50[1] ), or that the injury the defendant caused was anything less than a serious physical injury (see People v. Figueroa, 57 AD3d 1003, 1003-1004;  People v. Eagleston, 194 A.D.2d 623).

Furthermore, the trial court properly denied the defendant'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 the evidence supported a finding that the force he used was anything less than deadly physical force (see People v. Magliato, 68 N.Y.2d 24, 29;  People v. Figueroa, 57 AD3d at 1004;  People v. Beckford, 49 AD3d 547, 548;  People v. Hyc, 240 A.D.2d 431, 432;  Penal Law §§ 10.00[11], 35.15 [1] ).

The defendant's contention that the trial court improperly allowed the People to admit his grand jury testimony as part of the case-in-chief is unpreserved for appellate review (see CPL 470.05[2] ) since the defendant's objection at trial was based upon grounds different from those raised on appeal (see People v. Clas, 54 AD3d 770;  People v. Saladana, 208 A.D.2d 872, 873).   In any event, the grand jury testimony was properly admitted as an admission by the defendant (see People v. Spurgeon, 264 A.D.2d 401;  People v. Rose, 224 A.D.2d 643;  People v. Rodriguez, 191 A.D.2d 597, 598;  People v. Koestler, 176 A.D.2d 1207, 1208).

Contrary to the defendant's contention, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is no indication that the defendant was punished for asserting his right to proceed to trial (see People v. Pena, 50 N.Y.2d 400, 411, cert denied 449 U.S. 1087;  People v. Brock, 69 AD3d 644;  People v. DeHaney, 66 AD3d 1040, 1041;  People v. Garcia, 66 AD3d 699, 701;  People v. Smith, 49 AD3d 904, 906).   Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

However, we agree that the Supreme Court erred in relying upon a preliminary fact-finding report 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 a preliminary fact finder to ascertain the appropriate amount of restitution ․ the court 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 accurately determine the proper amount of restitution (People v. Jackson, 261 A.D.2d 636, 637-638, quoting People v. James, 186 A.D.2d 679, 680 [internal quotation marks omitted];  see Penal Law § 67.27[2];  People v. Myron, 28 AD3d 681, 684, cert denied 549 U.S. 1326;  People v. Vella, 176 A.D.2d at 768-769).   Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for a hearing on the proper amount of restitution 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.

ENTER:

James Edward Pelzer

Clerk of the Court