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-yearold 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