Opinion
March 8, 1996
Appeal from the Yates County Court, Falvey, J.
Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Yates County Court for further proceedings in accordance with the following Memorandum: Defendant has failed to preserve for review his contention that reversal is required because the prosecutor failed to instruct the Grand Jury not to consider the statement given to the police by the codefendant as evidence against defendant ( see, People v Brown, 81 N.Y.2d 798, 799; People v Estes, 202 A.D.2d 516, 517, lv denied 84 N.Y.2d 825), 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 [a]).
The admission by defendant that the shotgun he possessed was a firearm, along with defense counsel's request that County Court refrain from charging the jury on the definition of a firearm, constituted a waiver of defendant's right to a charge on that element of the crime of criminal possession of a weapon in the second degree ( see, People v Pacheco, 135 A.D.2d 744, 745, lv denied 71 N.Y.2d 900; cf., People v Lewis, 64 N.Y.2d 1031, 1032). Additionally, we reject the contention of defendant that he was denied effective assistance of counsel after his arrest and prior to his arraignment ( see, People v Hobot, 84 N.Y.2d 1021, 1022).
Lastly, as the People concede, County Court erred in directing defendant to pay restitution without first conducting a hearing on the amount of restitution to be paid ( see, Penal Law § 60.27; People v Gettys, 162 A.D.2d 963, lv denied 76 N.Y.2d 857). Therefore, we modify the judgment by vacating the amount of restitution, and we remit the matter for a hearing to determine the amount of restitution to be paid ( see, People v Bernier, 197 A.D.2d 882; People v Beaudoin, 195 A.D.2d 996, lv denied 82 N.Y.2d 891).