People v. Garofalo

• Decision Date: 12 April 1993
• Citation: 596 N.Y.S.2d 121,192 A.D.2d 619
• Parties: The PEOPLE, etc., Respondent, v. Anthony GAROFALO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 121

596 N.Y.S.2d 121

192 A.D.2d 619

The PEOPLE, etc., Respondent, v. Anthony GAROFALO, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 12, 1993.

Philip L. Weinstein, New York City (Nancy Little, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (John M. Castellano, Tammy J. Smiley, and Robert J. Valli, Jr., of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, EIBER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered September 5, 1991, convicting him of assault in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by dismissing the conviction for assault in the third degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the defendant (see, People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 456 N.E.2d 795), we find that there is no reasonable view thereof which would support a finding that the defendant struck the complainant in self defense (see, People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188). Accordingly, the court properly refused to instruct the jury on the defense of justification.

The court committed error in failing to dismiss the defendant's conviction for assault in the third degree (Penal Law § 120.00[1]. Under CPL 300.40(3)(b), "[w]here the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count" (People v. Grier, 37 N.Y.2d 847, 848, 378 N.Y.S.2d 37, 340 N.E.2d 471). Moreover, a conviction on the lesser count must be dismissed although the defendant did not request that the inclusory count be charged in the alternative (see, People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579; see also, People v. Robinson, 166 A.D.2d 543, 560 N.Y.S.2d 824; People v. Johnson, 158 A.D.2d 939, 551 N.Y.S.2d 102).

The defendant was properly denied youthful offender treatment (see, People v. Cruickshank, 105 A.D.2d 325, 484 N.Y.S.2d 328, affd. sub nom. People v. Dawn Maria C., 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530).

The defendant's contention that the court erred in fixing the amount of restitution without a hearing is unpreserved for appellate review (see, People v. Callahan, 80 N.Y.2d 273,...