People v. Richter

• Decision Date: 29 January 1996
• Parties: The PEOPLE, etc., Respondent, v. Robert RICHTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 206

637 N.Y.S.2d 206

223 A.D.2d 734

The PEOPLE, etc., Respondent, v. Robert RICHTER, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 29, 1996.

Feldman and Feldman, Hauppauge (Steven A. Feldman, of counsel), for appellant.

Kevin L. Wright, District Attorney, Carmel (Valerie Friedlander, of counsel), for respondent.

Before ROSENBLATT, J.P., and O'BRIEN, PIZZUTO and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Putnam County (Braatz, J.), rendered June 1, 1994, convicting him of murder in the second degree, upon a jury verdict, sentencing him to an indeterminate term of 25 years to life imprisonment and directing him to pay a mandatory surcharge in the sum of $150 and restitution in the sum of $2,000. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress oral and written statements given by the defendant to law enforcement officials.

ORDERED that the judgment is modified, on the law, by deleting the provisions thereof directing the payments of a mandatory surcharge in the sum of $150 and restitution in the sum of $2,000; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Putnam County, for a hearing and new determination concerning the proper amount of restitution and the manner of payment thereof.

We find no basis to disturb the hearing court's determination that the defendant's oral and written statements to the police were voluntary, that the defendant never verbalized to investigators his desire for the assistance of counsel, that he freely and voluntarily waived his right to remain silent and his right to counsel, and that he consented to the polygraph examination (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188; People v. Deskovic, 201 A.D.2d 579, 580, 607 N.Y.S.2d 957; People v. Fisch, 175 A.D.2d 926, 927, 573 N.Y.S.2d 762; People v. Glasper, 160 A.D.2d 723, 553 N.Y.S.2d 472; People v. Henry, 132 A.D.2d 673, 675, 518 N.Y.S.2d 44; People v. Clow, 62 A.D.2d 880, 883, 406 N.Y.S.2d 598).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The defendant's sentence is neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). Nonetheless, the imposition of both a mandatory surcharge in the sum of $150 and restitution in the sum of $2,000 was improper (see, Penal Law § 60.35[1]; People v. Bailey, 209 A.D.2d 709, 619 N.Y.S.2d 682; People v. Burton, 194 A.D.2d 683, 684, 599 N.Y.S.2d 108; People v. Turco, 130 A.D.2d 785, 786, 515 N.Y.S.2d 853)....