Opinion
May 26, 1992
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating that portion of the sentence which requires the defendant to make restitution of $16,000,000; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a hearing to determine the amount of restitution to be imposed.
The facts of this case are fully set forth in the decision and order on the appeal of the codefendant Sheldon Weinberg (see, People v. Weinberg, 183 A.D.2d 932 [decided herewith]).
The defendant contends that the People failed to prove that he was involved in the Medicaid fraud conducted at the Bed-Stuy Health Care Corp. Clinic (hereinafter BSHC). Viewing the evidence adduced at the trial in a light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to support the conviction. The People proved that the defendant was involved in the supervision of the fraudulent Medicaid billing that was conducted from the BSHC. Further, the People proved that the defendant participated in a theft in excess of $50,000, justifying his conviction of grand larceny in the second degree as a lesser included offense of grand larceny in the first degree charged in the indictment. Moreover upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15). Since the defendant's conviction was not based solely on circumstantial evidence, the "moral certainty" standard of proof (see, People v. Benzinger, 36 N.Y.2d 29, 32) need not be applied.
In light of the circumstances of this case and the defendant's criminal history, the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80). However, in the interest of justice, we remit the matter to the Supreme Court to conduct a hearing on the amount of restitution to be imposed (see, People v. Weinberg, 183 A.D.2d 932, supra; People v. Weinberg, 183 A.D.2d 930 [decided herewith]).
The defendant's remaining contentions are unpreserved for appellate review, or without merit (see, People v. Weinberg, 183 A.D.2d 932, supra), or do not warrant reversal of the judgment of conviction. Sullivan, J.P., Harwood, Ritter and Copertino, JJ., concur.