| People v Miller |
| 2020 NY Slip Op 02585 [183 AD3d 1268] |
| May 1, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Steffan J. Miller, Appellant. |
Steven A. Feldman, Manhasset, for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Marianne Furfure, A.J.),rendered January 24, 2018. The judgment convicted defendant upon a nonjury verdict ofassault in the second degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of assault in the second degree (Penal Law § 120.05 [9]) andendangering the welfare of a child (§ 260.10 [1]). Defendant "made only ageneral motion for a trial order of dismissal, and thus failed to preserve for our review hischallenge to the legal sufficiency of the evidence" (People v Alejandro, 60 AD3d 1381, 1382 [4th Dept 2009],lv denied 12 NY3d 850 [2009]; see People v Gray, 86 NY2d 10, 19[1995]). In any event, defendant's contention lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Furthermore, viewing the evidence in light ofthe elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Defendant contends that County Court lacked jurisdiction to order postjudgmentrestitution because the People did not state at or before sentencing that they were seekingrestitution. Rather, upon a recommendation set forth in the presentence report, the courtstated at sentencing that it would impose restitution at a later date. Defendant thereafterwaived a hearing and consented to restitution totaling $2,764.08. Although defendant'sjurisdictional challenge need not be preserved for our review (see People v Naumowicz, 76AD3d 747, 749 [3d Dept 2010]; see generally People v Stewart, 151 AD3d 1860, 1861 [4thDept 2017]), we conclude that the court's "deferral of restitution issues did not work todeprive it of jurisdiction to thereafter impose restitution as it had announced it would doat sentencing" (People v Bauer, 229 AD2d 502, 502 [2d Dept 1996]; seePeople v Jackson, 180 AD2d 755, 755 [2d Dept 1992]). Insofar as defendantcontends that the court erred in deferring the restitution issue absent a request from thePeople, we conclude that defendant failed to preserve his contention for our review(see CPL 470.05 [2]; cf. People v Kevin C., 265 AD2d 828, 828-829 [4thDept 1999]), and we decline to exercise our power to review defendant's contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant further contends that the court abused its discretion in issuing a no-contactorder of protection in favor of the child victim's mother. We reject that contention. Thecourt had the power to issue an order of protection and set the terms thereof, evenwithout the mother's consent (see People v Walker, 151 AD3d 1730, 1731 [4th Dept2017], lv denied 29 NY3d 1135 [2017], denied reconsideration 30 NY3d984 [2017]; People v Paul,117 AD3d 1499, 1499-1500 [4th Dept 2014]).
Finally, the sentence is not unduly harsh or severe. Present—Carni, J.P.,Lindley, Curran, Troutman and Bannister, JJ.