Opinion
June 22, 1990
Appeal from the Supreme Court, Erie County, Flynn, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Balio, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: Supreme Court erred when it directed defendant to pay $800 in restitution without first conducting a hearing on the amount of the restitution to be paid (see, Penal Law § 60.27; People v. Fuller, 57 N.Y.2d 152; People v. Dixon, 134 A.D.2d 877). The People concede that this portion of the sentence must be vacated and the matter remitted for a restitution hearing. We otherwise find that defendant's sentence was not unduly harsh and excessive.
There is no merit to defendant's contention that the photographic array shown to each of the witnesses was unduly suggestive and tainted the witnesses' in-court identification. Although some of the photographs in the array are of men with somewhat darker skin tone than that of defendant, after examining the photo arrays in question, we conclude that the witnesses' attention was not drawn to a particular subject (see, People v Davis, 148 A.D.2d 952, lv denied 74 N.Y.2d 663; People v. Dubois, 140 A.D.2d 619, 622, lv denied 72 N.Y.2d 911). Since defendant failed to object to the prosecutor's comments on summation, this issue has not been preserved for our review (see, CPL 470.05; People v. Dawson, 50 N.Y.2d 311, 324) and reversal is not warranted in the interest of justice.