People v. Gettys , 162 A.D.2d 963 ( 1990 )

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 [2]; People v Fuller, 57 NY2d 152; People v Dixon, 134 AD2d 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 AD2d 952, Iv denied 74 NY2d 663; People v Dubois, 140 AD2d 619, 622, Iv denied 72 NY2d 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 [2]; People v Dawson, 50 NY2d 311, 324) and reversal is not warranted in the interest of justice. (Appeal from judgment of Supreme Court, Erie County, Flynn, J.— robbery, second degree.) Present—Callahan, J. P., Doerr, Boomer, Green and Balio, JJ.