Opinion
(1124) KA 99-05490.
September 28, 2001.
(Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Grand Larceny, 3rd Degree.)
PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, KEHOE AND GORSKI, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of two counts each of grand larceny in the third degree (Penal Law § 155.35) and grand larceny in the fourth degree (Penal Law § 155.30), four counts of petit larceny (Penal Law § 155.25), and one count of scheme to defraud in the first degree (Penal Law § 190.65 [b]). He contends that his oral statements should be suppressed as obtained in violation of his State constitutional right to counsel; that the verdict finding him guilty under counts three, five, six, and nine is against the weight of the evidence; that the corresponding orders of restitution must be vacated on that basis; that all of the restitution orders must be vacated as unconstitutional; and that the sentence is unduly harsh or severe.
Although defendant generally may raise a State constitutional right to counsel claim for the first time on appeal, "[t]his does not * * * dispense with the need for a factual record sufficient to permit appellate review" ( People v. Kinchen, 60 N.Y.2d 772, 773-774; see, People v. Ermo, 47 N.Y.2d 863, 865). Here, the record is insufficient to enable us to review defendant's claim ( see, People v. Kinchen, supra, at 773-774; People v. Charleston, 54 N.Y.2d 622, 623; People v. Berezansky, 229 A.D.2d 768, 772, lv denied 89 N.Y.2d 919). In particular, we are unable to determine whether defendant waived his right to counsel, which he would be permitted to do under the circumstances of this case ( see, People v. Davis, 75 N.Y.2d 517, 520-524).
We reject defendant's contention that the verdict is against the weight of the evidence. This is not a case in which a different verdict "might not have been unreasonable" ( People v. Bleakley, 69 N.Y.2d 490, 495). Construing defendant's claim as a challenge to the legal sufficiency of the evidence, we conclude that the evidence is legally sufficient to establish defendant's guilt of larceny and scheme to defraud ( see, People v. Norman, 85 N.Y.2d 609, 622-623; People v. Collins, 273 A.D.2d 802, 803, lv denied 95 N.Y.2d 933; People v. Ruscito, 206 A.D.2d 841, 841-842, lv denied 84 N.Y.2d 872; cf., People v. Burks, 254 A.D.2d 738, 738-739).
Defendant's challenges to the restitution orders are lacking in merit ( see, People v. Horne, 284 A.D.2d 986]; see generally, Apprendi v. New Jersey, 530 U.S. 466). The sentence is not unduly harsh or severe.