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

Opinion

The 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.