Opinion
2012-05-1
The PEOPLE, etc., respondent, v. Damon PRICE, appellant.
Judah Maltz, Kew Gardens, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C. King of counsel), for respondent.
Judah Maltz, Kew Gardens, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C. King of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered February 8, 2011, convicting him of robbery in the second degree, assault in the second degree, robbery in the third degree, possession of burglar's tools (two counts), petit larceny (two counts), and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
After the defendant exercised his peremptory challenges and indicated his satisfaction with a venire panel, the Supreme Court should not have permitted the prosecutor to belatedly exercise a peremptory challenge to a still unsworn, prospective juror ( see CPL 270.15[2]; People v. Mancuso, 22 N.Y.2d 679, 291 N.Y.S.2d 370, 238 N.E.2d 757, cert. denied sub nom. Morganti v. New York, 393 U.S. 946, 89 S.Ct. 320, 21 L.Ed.2d 284; People v. Lambert, 36 A.D.3d 939, 827 N.Y.S.2d 667; People v. Nieves, 26 A.D.3d 519, 520, 809 N.Y.S.2d 586; People v. Feliciano, 308 A.D.2d 459, 459–460, 764 N.Y.S.2d 196; People v. Lebron, 236 A.D.2d 423, 423–424, 653 N.Y.S.2d 615). However, by failing to object to the prosecutor's belated peremptory challenge when made, the defendant *877 waived the rights secured to him under CPL 270.15(2) ( see People v. Mancuso, 22 N.Y.2d 679, 291 N.Y.S.2d 370, 238 N.E.2d 757; People v. Eley, 35 A.D.3d 498, 825 N.Y.S.2d 709; People v. Lebron, 236 A.D.2d at 423–424, 653 N.Y.S.2d 615).
The defendant also contends that the prosecution failed to prove his guilt of the charges of robbery in the second degree and robbery in the third degree by legally sufficient evidence. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of robbery in the second degree and robbery in the third degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt with respect to the counts of robbery in the second degree and robbery in the third degree was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902; see also Penal Law § 160.00; People v. Samuel, 84 A.D.3d 841, 922 N.Y.S.2d 793; People v. Barksdale, 50 A.D.3d 400, 401, 858 N.Y.S.2d 5; People v. Green, 277 A.D.2d 82, 83, 716 N.Y.S.2d 22).
The defendant's contentions that the portion of the sentence requiring him to pay restitution was improper in the absence of an evidentiary hearing, and that the amount of restitution imposed was not supported by the record, are without merit. The presentence report provided the trial court with a sufficient evidentiary basis to determine the amount of the victims' out-of-pocket losses, and a hearing was not required under these circumstances ( see Penal Law § 60.27[2]; People v. Kim, 91 N.Y.2d 407, 411, 671 N.Y.S.2d 420, 694 N.E.2d 421; People v. Charles, 309 A.D.2d 873, 874, 766 N.Y.S.2d 42; People v. Stubbs, 281 A.D.2d 498, 499, 721 N.Y.S.2d 562; cf. People v. Jackson, 261 A.D.2d 636, 692 N.Y.S.2d 400).