| People v Butler |
| 2010 NY Slip Op 01292 [70 AD3d 1509] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin J.Butler, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedOctober 26, 2007. The judgment convicted defendant, upon a jury verdict, of criminal mischiefin the third degree, criminal contempt in the second degree, and endangering the welfare of achild.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal mischief in the third degree (Penal Law § 145.05 [2]), criminal contempt in thesecond degree (§ 215.50), and endangering the welfare of a child (§ 260.10 [1]).The charges were the result of defendant's violation of a previously issued order of protectionwhen defendant appeared at the residence of his former wife and threw a coffee table through herfront window. Defendant contends that the evidence is legally insufficient to support theconviction of criminal mischief because the People failed to establish that the value of thedamaged property exceeded $250. We reject that contention. The People presented the testimonyof a witness who estimated that the cost of repairing the window was $1,024, and who testifiedthat his estimate was based on his examination of the window and his 27 years of experience inrepairing windows (see People v Singleton, 291 AD2d 869 [2002], lv denied 98NY2d 640 [2002]; People v Smeraldo, 242 AD2d 886 [1997], lv denied 91NY2d 880 [1997]; People v Katovich, 238 AD2d 751 [1997]). Also contrary todefendant's contention, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
" 'To the extent [that] defendant challenges the amount of the restitution order[ ] as lackingrecord support, [his] claim is not properly before this Court for review because [he] did notrequest a hearing to determine the [proper amount of restitution] or otherwise challenge theamount of the restitution order[ ] during the sentencing proceeding' " (People v Peck, 31 AD3d 1216,1216-1217 [2006], lv denied 9 NY3d 992 [2007], quoting People v Horne, 97NY2d 404, 414 n 3 [2002]).
Finally, the sentence is neither unduly harsh nor severe. Present—Smith, J.P., Fahey,Carni and Green, JJ.