| People v Jones |
| 2013 NY Slip Op 05399 [108 AD3d 1206] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDamitria S. Jones, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered September 8, 2011. The judgment convicted defendant, upon a nonjury verdict,of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her after a nonjury trial ofassault in the second degree (Penal Law § 120.05 [2]), defendant contends thatCounty Court erred in denying the motion to suppress her written statement as the fruit ofunlawful pre-Miranda questioning. Contrary to defendant's contention, the courtproperly refused to suppress statements that she made to the police inasmuch as"defendant was not in custody when [s]he made those statements and thus. . . the fact that [s]he had not been [administered Mirandawarnings] when [s]he made the statements does not require their suppression" (People v Semrau, 77 AD3d1436, 1437 [2010], lv denied 16 NY3d 746 [2011]).
Contrary to defendant's further contention, the identification procedure was notunduly suggestive. "[T]he subjects depicted in the photo array are sufficiently similar inappearance so that the viewer's attention is not drawn to any one photograph in such away as to indicate that the police were urging a particular selection" (People v Quinones, 5 AD3d1093, 1093 [2004], lv denied 3 NY3d 646 [2004]), and the photographsused in the array did not "create a substantial likelihood that the defendant would besingled out for identification" (People v Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990]; see People v Egan, 6 AD3d 1203, 1204 [2004], lvdenied 3 NY3d 639 [2004]).
Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Additionally, " '[h]aving considered the facts and circumstances of this case,' "we reject defendant's contention that the court abused its discretion in denying heryouthful offender status (Peoplev Guppy, 92 AD3d 1243, 1243 [2012], lv denied 19 NY3d 961 [2012];see People v Potter, 13AD3d 1191, 1191 [2004], lv denied 4 NY3d 889 [2005]; see generallyCPL 720.20 [1] [a]). We decline to exercise our interest of justice [*2]jurisdiction to adjudicate defendant a youthful offender(see generally People v Shrubsall, 167 AD2d 929, 930-931 [1990]).
Finally, defendant's contention that the court erred in ordering her to pay restitutionwithout conducting a hearing is unpreserved for our review inasmuch as defendant didnot "request a hearing to determine the [proper amount of restitution] or otherwisechallenge the amount of restitution order[ed] during the sentencing proceeding" (People v Butler, 70 AD3d1509, 1510 [2010], lv denied 14 NY3d 886 [2010] [internal quotation marksomitted]; see People v Horne, 97 NY2d 404, 414 n 3 [2002]). We decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Present—Scudder, P.J., Centra, Fahey,Carni and Lindley, JJ.