People v. Contes

Appellate Division of the Supreme Court of New York

People v. Contes

289 A.D.2d 128, 735 N.Y.S.2d 35, 2001 N.Y. App. Div. LEXIS 12274

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 18, 2001

StatusPublished

Cited by2 cases

This text of 289 A.D.2d 128 (People v. Contes) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Contes, 289 A.D.2d 128, 735 N.Y.S.2d 35, 2001 N.Y. App. Div. LEXIS 12274 (N.Y. Ct. App. 2001).

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Opinion

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered May 12, 2000, convicting defendant, after a jury trial, of grand larceny in the second degree, grand larceny [129]*129in the third degree (two counts) and criminal possession of stolen property in the third degree (two counts), and which sentenced her to a term of five years probation and ordered her to pay $3,000 in restitution, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly considered by the trier of facts and there is no basis upon which to disturb its determinations (see, People v Gaimari, 176 NY 84, 94). The accomplice testimony was sufficiently corroborated by documentary evidence supplied by the victim, bank records and testimony from defendant’s coworker. Defendant’s newly discovered evidence claim may not be considered on direct appeal because it involves matters dehors the record. Accordingly, it would require a motion pursuant to CPL 440.10 (1) (g). In any event, the newly discovered evidence constituted impeachment material that would not have created a likelihood of a different verdict.

With respect to the People’s appeal from the sentence, challenging the court’s imposition of restitution in a lesser amount than the victim’s out-of-pocket loss, we note that an appeal by the People from a sentence “may be based only upon the ground that such sentence was invalid as á matter of law” (CPL 450.30 [2]), and we find no illegality. Neither defendant nor the prosecutor requested a hearing to determine the exact dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense (see, Penal Law § 60.27 [2]). The record sufficiently establishes that the court, while not providing extensive detail, did not improvidently exercise its discretion (Penal Law § 60.27 [1]) in ordering defendant to pay only $3,000 in restitution.

Defendant was one of several persons convicted in this scheme wherein a larger sum was stolen from defendant’s employer, and the other conspirators were ordered to pay restitution in substantial amounts based on their respective shares of the proceeds of the crime. We note that the People did not request a hearing on this subject. Concur — Lerner, J. P., Saxe, Buckley, Friedman and Marlow, JJ.

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Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered May 12, 2000, convicting defendant, after a jury trial, of grand larceny in the second degree, grand larceny [129]*129in the third degree (two counts) and criminal possession of stolen property in the third degree (two counts), and which sentenced her to a term of five years probation and ordered her to pay $3,000 in restitution, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly considered by the trier of facts and there is no basis upon which to disturb its determinations (see, People v Gaimari, 176 NY 84, 94). The accomplice testimony was sufficiently corroborated by documentary evidence supplied by the victim, bank records and testimony from defendant’s coworker. Defendant’s newly discovered evidence claim may not be considered on direct appeal because it involves matters dehors the record. Accordingly, it would require a motion pursuant to CPL 440.10 (1) (g). In any event, the newly discovered evidence constituted impeachment material that would not have created a likelihood of a different verdict.

With respect to the People’s appeal from the sentence, challenging the court’s imposition of restitution in a lesser amount than the victim’s out-of-pocket loss, we note that an appeal by the People from a sentence “may be based only upon the ground that such sentence was invalid as á matter of law” (CPL 450.30 [2]), and we find no illegality. Neither defendant nor the prosecutor requested a hearing to determine the exact dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense (see, Penal Law § 60.27 [2]). The record sufficiently establishes that the court, while not providing extensive detail, did not improvidently exercise its discretion (Penal Law § 60.27 [1]) in ordering defendant to pay only $3,000 in restitution.

Defendant was one of several persons convicted in this scheme wherein a larger sum was stolen from defendant’s employer, and the other conspirators were ordered to pay restitution in substantial amounts based on their respective shares of the proceeds of the crime. We note that the People did not request a hearing on this subject. Concur — Lerner, J. P., Saxe, Buckley, Friedman and Marlow, JJ.

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Bluebook (online)

289 A.D.2d 128, 735 N.Y.S.2d 35, 2001 N.Y. App. Div. LEXIS 12274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-contes-nyappdiv-2001.

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