People v. Stone

Appellate Division of the Supreme Court of New York

People v. Stone

225 A.D.2d 1067, 639 N.Y.2d 603, 639 N.Y.S.2d 603, 1996 N.Y. App. Div. LEXIS 2906

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

DecidedMarch 8, 1996

StatusPublished

Cited by3 cases

This text of 225 A.D.2d 1067 (People v. Stone) 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. Stone, 225 A.D.2d 1067, 639 N.Y.2d 603, 639 N.Y.S.2d 603, 1996 N.Y. App. Div. LEXIS 2906 (N.Y. Ct. App. 1996).

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Opinion

[1068]*1068The 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 AD2d 744, 745, lv denied 71 NY2d 900; cf., People v Lewis, 64 NY2d 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 NY2d 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 [2]; People v Gettys, 162 AD2d 963, lv denied 76 NY2d 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 AD2d 882; People v Beaudoin, 195 AD2d 996, lv denied 82 NY2d 891). (Appeal from Judgment of Yates County Court, Falvey, J. — Attempted Murder, 1st Degree.) Present— Lawton, J. P., Fallon, Doerr, Balio and Davis, JJ.

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[1068]*1068The 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 AD2d 744, 745, lv denied 71 NY2d 900; cf., People v Lewis, 64 NY2d 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 NY2d 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 [2]; People v Gettys, 162 AD2d 963, lv denied 76 NY2d 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 AD2d 882; People v Beaudoin, 195 AD2d 996, lv denied 82 NY2d 891). (Appeal from Judgment of Yates County Court, Falvey, J. — Attempted Murder, 1st Degree.) Present— Lawton, J. P., Fallon, Doerr, Balio and Davis, JJ.

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Bluebook (online)

225 A.D.2d 1067, 639 N.Y.2d 603, 639 N.Y.S.2d 603, 1996 N.Y. App. Div. LEXIS 2906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stone-nyappdiv-1996.

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