        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

420
KA 13-02099
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THEODORE TYLER, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered August 27, 2013. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the fourth degree
(two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the amount of restitution
ordered and as modified the judgment is affirmed, and the matter is
remitted to Onondaga County Court for a hearing to determine the
amount of restitution.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of grand larceny in the fourth
degree (Penal Law § 155.30 [1]) in connection with the theft of
jewelry on October 2 and October 4, 2012 from the home of the 74-year-
old victim, who had hired defendant to perform work around the house.
We reject defendant’s contention that he was excluded from a material
stage of the trial when defense counsel exercised peremptory
challenges to the jury during a sidebar conference with County Court
and the prosecutor. The record establishes that defendant was present
at every sidebar conference when a prospective juror was questioned
(cf. People v Davidson, 89 NY2d 881, 882; People v Antommarchi, 80
NY2d 247, 250), and “there is nothing in the record to suggest that
defendant lacked suitable opportunities to consult with his attorney”
about which prospective jurors to strike peremptorily (People v
Quintana, 80 AD3d 499, 499, lv denied 17 NY3d 799; see People v Green,
54 AD3d 603, 604, lv denied 11 NY3d 899). Indeed, defendant does not
contend that he was not given an opportunity to consult with his
attorney regarding the use of peremptory challenges or that he
disagreed with defense counsel’s use of such challenges. We note
that, although defendant “was not present when the challenges were
discussed, he was present during the entire voir dire and was present
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                                                           KA 13-02099

when   the challenges were given effect, because the challenged jurors
were   excused and others were sworn in open court” (People v Evans, 207
AD2d   500, 500, lv denied 84 NY2d 1031; see People v Velasco, 77 NY2d
469,   473).

     Defendant failed to preserve for our review his contention that
his conviction on the second count of the indictment is not supported
by legally sufficient evidence, and he preserved his sufficiency
contention with respect to the first count only insofar as it relates
to the identity of the person who stole the jewelry to which that
count pertains, not the value of that jewelry (see People v Gray, 86
NY2d 10, 19; People v Loomis, 56 AD3d 1046, 1046). In any event,
contrary to defendant’s contention, the direct and circumstantial
evidence adduced at trial, viewed in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), provided a “valid line
of reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the
evidence at trial” (People v Bleakley, 69 NY2d 490, 495). The victim
testified that defendant was the only person who had access to the
place where the jewelry was kept before it disappeared, defendant
admitted in a letter to a judge that he had committed an “act of
larceny,” defendant’s identification was used in a pawn shop
transaction involving the jewelry stolen on October 4, 2012, and
defendant, allegedly acting suspiciously, was seen near that pawn shop
with another man on October 2, 2012, the date the jewelry stolen that
day was sold to the pawn shop. We conclude that the above evidence is
sufficient to prove the identity of defendant as the person who stole
the jewelry (see generally People v Daniels, 125 AD3d 1432, 1433, lv
denied 25 NY3d 1071, reconsideration denied 26 NY3d 928). Contrary to
defendant’s further contention, the testimony of the pawn shop owner
concerning the value of the stolen jewelry was sufficient to establish
that the value of the jewelry stolen on both October 2 and October 4,
2012 exceeded the statutory threshold (see People v Helms, 119 AD3d
1153, 1155, lv denied 24 NY3d 1044; see also Penal Law § 155.20 [1]).
Viewing the evidence in light of the elements of the crime of grand
larceny in the fourth degree as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we further conclude that the verdict is
not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495).

     We agree with defendant, however, that the court erred in
imposing restitution as part of the sentence. Although the court had
jurisdiction to impose restitution despite its failure to order
restitution at the time of sentencing (see People v Swiatowy, 280 AD2d
71, 72-73, lv denied 96 NY2d 868), a hearing was required because
defendant contested the amount of restitution at sentencing and,
although the request was inartfully articulated, defendant also
requested a hearing (see People v Ippolito, 89 AD3d 1369, 1370, affd
20 NY3d 615; People v Consalvo, 89 NY2d 140, 144; see also Penal Law
§ 60.27 [2]). We therefore modify the judgment by vacating the amount
of restitution ordered, and we remit the matter to County Court to
determine the amount of restitution, after which the uniform sentence
and commitment sheet must be amended to reflect the proper amount of
restitution (see People v Deschaine, 116 AD3d 1303, 1304, lv denied 23
                                 -3-                           420
                                                         KA 13-02099

NY3d 1019).

     We have reviewed defendant’s remaining contentions and conclude
that none requires reversal or further modification of the judgment.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
