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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Devine R. WORTHY, Defendant-Appellant.  (Appeal No. 1.)

Decided: April 29, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. Gary A. Horton, Public Defender, Batavia (Bridget L. Field of Counsel), for Defendant-Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Plaintiff-Respondent.

In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of stolen property in the third degree (Penal Law § 165.50) and unauthorized use of a vehicle in the second degree (§ 165.06).   In appeal No. 2, he appeals from an order directing him to pay restitution, including a 5% designated surcharge, in the amount of $3,242.79.   We reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further reject defendant's contention that the amount of restitution ordered is not supported by the record (see generally § 60.27[2], [4][b];  People v. Swank, 278 A.D.2d 861, 717 N.Y.S.2d 438, lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87).   The uncontroverted evidence at the restitution hearing established that an insurance company paid $2,557.96 for repairs to the vehicle and that the victim had rental car expenses and paid a comprehensive deductible totaling $530.41.   Those amounts, together with the designated surcharge, total the amount of restitution ordered.   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.