PEOPLE v. CRAFT

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Shane W. CRAFT, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SMITH, J.P., CENTRA, LUNN, FAHEY, AND GREEN, JJ. Timothy Patrick Murphy, Williamsville, for Defendant-Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him, upon a jury verdict, of gang assault in the first degree (Penal Law § 120. 07).   Although defendant's contention that Penal Law § 120.07 is unconstitutionally vague is properly before us inasmuch as the requisite notice of that contention was provided to the Attorney General (see Executive Law § 71;  cf. People v. McKeehan, 2 A.D.3d 1421, 1422, 770 N.Y.S.2d 246, lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 415, 816 N.E.2d 205), we conclude that it lacks merit.   Contrary to defendant's contention, the phrase “aided by two or more persons actually present” contained in the statute has a plain meaning that excludes constructive presence, and the statute is not vague as applied to defendant (see People v. Hedgeman, 70 N.Y.2d 533, 538-540, 523 N.Y.S.2d 46, 517 N.E.2d 858;  see generally People v. Stuart, 100 N.Y.2d 412, 422-423, 765 N.Y.S.2d 1, 797 N.E.2d 28).

 Contrary to defendant's further contentions, the evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence (see People v. East, 284 A.D.2d 962, 962-963, 728 N.Y.S.2d 608, lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 497, 761 N.E.2d 2;  see generally People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1).   We reject the contention of defendant that there was no corroboration of the testimony of his accomplices (see CPL 60.22[1] ).   Indeed, the necessary corroboration was provided by evidence that defendant and his accomplices sought a confrontation, that defendant was wounded when he returned from the scene of the assault, and that defendant's blood was found at the scene of the assault.  “Once the statutory minimum pursuant to CPL 60.22(1) was met, it was for the jurors to decide whether the corroborating [evidence] satisfied them that the accomplices were telling the truth” (People v. Pierce, 303 A.D.2d 966, 966, 758 N.Y.S.2d 444, lv. denied 100 N.Y.2d 565, 763 N.Y.S.2d 822, 795 N.E.2d 48).

 Also contrary to the contention of defendant, County Court properly refused to suppress statements that he made to the police.   The evidence presented at the suppression hearing established that the police lawfully stopped defendant's vehicle (see People v. Robinson, 97 N.Y.2d 341, 348, 741 N.Y.S.2d 147, 767 N.E.2d 638;  People v. White, 27 A.D.3d 1181, 812 N.Y.S.2d 208), and that defendant's statements made to the police at that time were not in response to custodial interrogation (see People v. Bennett, 70 N.Y.2d 891, 893-894, 524 N.Y.S.2d 378, 519 N.E.2d 289;  People v. Morales, 65 N.Y.2d 997, 494 N.Y.S.2d 95, 484 N.E.2d 124). Rather, the statements were made in response to inquiry “ ‘necessary for providing for defendant's physical [condition and] needs' ” (People v. Topolski, 28 A.D.3d 1159, 1160, 813 N.Y.S.2d 595, lv. dismissed 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680, lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 889, 853 N.E.2d 260, 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289).   The evidence presented at the suppression hearing further established that defendant's subsequent statements were made after defendant had waived his Miranda rights (see People v. Burnett, 41 A.D.3d 1201, 838 N.Y.S.2d 290).

 We reject the further contention of defendant that the court erred in admitting testimony concerning his uncharged criminal activity.   That testimony “ ‘was relevant to defendant's motive and ․ its prejudicial effect did not outweigh its probative value’ ” (People v. Wright, 38 A.D.3d 1232, 1234, 834 N.Y.S.2d 908, lv. denied 9 N.Y.3d 853, 840 N.Y.S.2d 780, 872 N.E.2d 893, 9 N.Y.3d 884, 842 N.Y.S.2d 796, 874 N.E.2d 763;  see People v. Burkett, 12 A.D.3d 1196, 1196-1197, 784 N.Y.S.2d 433, lv. denied 4 N.Y.3d 762, 792 N.Y.S.2d 5, 825 N.E.2d 137).   Defendant's contention that the court erred in amplifying its original jury instructions in response to a jury question also is without merit, inasmuch as the further instruction “constituted ‘a meaningful response to the jury's request for information’ ” (People v. Jones, 52 A.D.3d 1252, 1252, 859 N.Y.S.2d 544, lv. denied 11 N.Y.3d 738, 864 N.Y.S.2d 396, 894 N.E.2d 660;  see CPL 310.30;  People v. Santi, 3 N.Y.3d 234, 248, 785 N.Y.S.2d 405, 818 N.E.2d 1146).

Defendant failed to preserve for our review his further contention that the court abused its discretion in failing to afford him youthful offender status (see People v. Fowler, 28 A.D.3d 1183, 817 N.Y.S.2d 543, lv. denied 7 N.Y.3d 788, 821 N.Y.S.2d 818, 854 N.E.2d 1282), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.

 We agree with defendant, however, that he did not consent to the amount of restitution or waive his right to a hearing on that issue, and “the presentence report and unsworn victim impact statement constitute an insufficient basis for the court's finding with respect to the amount of restitution ordered” (People v. Melendez, 291 A.D.2d 887, 888, 737 N.Y.S.2d 569, lv. denied 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841;  see generally People v. Consalvo, 89 N.Y.2d 140, 145-146, 651 N.Y.S.2d 963, 674 N.E.2d 672).   We therefore modify the judgment by vacating the amount of restitution ordered, and we remit the matter to County Court for a hearing to determine the amount of restitution.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the amount of restitution ordered and as modified the judgment is affirmed, and the matter is remitted to Niagara County Court for a hearing.

MEMORANDUM: