| People v Daniqua S.D. |
| 2012 NY Slip Op 01017 [92 AD3d 1226] |
| February 10, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daniqua S.D.,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Vanessa S. Guite of counsel), forrespondent.
Appeal from an adjudication of the Erie County Court (Michael L. D'Amico, J.), renderedJuly 13, 2010. Defendant was adjudicated a youthful offender upon a jury verdict that found herguilty of criminal possession of stolen property in the fourth degree.
It is hereby ordered that the adjudication so appealed from is unanimously affirmed.
Memorandum: Defendant was adjudicated a youthful offender following her conviction,upon a jury verdict, of criminal possession of stolen property in the fourth degree (Penal Law§ 165.45 [2]). Preliminarily, we note that defendant's notice of appeal recites incorrectconvictions and an incorrect date on which the adjudication was rendered. Defendant's notice ofappeal recites the correct indictment number, however, and thus we treat the notice of appeal asvalid, in the exercise of our discretion in the interest of justice (see CPL 460.10 [6]).
We reject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]), upon viewing the evidence in lightof the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and accordinggreat deference to the jury's resolution of credibility issues (see generally Bleakley, 69NY2d at 495). Defendant contends for the first time on appeal that County Court unlawfullyordered her to pay $295 in restitution to the complainant. Although a contention that therestitution portion of a sentence is illegal need not be preserved for our review (see People v McCarthy, 83 AD3d1533, 1534-1535 [2011], lv denied 17 NY3d 819 [2011]), here defendant is not infact contending that the restitution imposed is illegal (see People v Callahan, 80 NY2d273, 280-281 [1992]). Instead, defendant contends that the court erred in relying upon thepresentence report to establish the complainant's out-of-pocket loss in light of the complainant'strial testimony suggesting that the complainant suffered no out-of-pocket loss. Her contentiontherefore is "addressed merely to the adequacy of the procedures the court used to arrive at itssentencing determination, specifically its purported overreliance on the presentencing report'srestitution recommendation" (id. at 281). Thus, defendant is raising a procedural issuethat she forfeited by failing to raise it in a timely manner (see id.).
Finally, the sentence is not unduly harsh or severe. We note, however, that the certificate[*2]of conviction incorrectly reflects that defendant wassentenced at a term of Supreme Court, Erie County, and it must therefore be amended to reflectthat she was sentenced at a term of Erie County Court (see generally People v Switzer, 55 AD3d 1394, 1395 [2008], lvdenied 11 NY3d 858 [2008]). Present—Scudder, P.J., Centra, Peradotto, Lindley andMartoche, JJ.