PEOPLE v. PECK (2006)

Defendant appeals from a judgment convicting him upon a jury verdict of arson in the third degree (Penal Law § 150.10[1] ), criminal mischief in the second degree (§ 145.10) and two counts of overdriving, torturing and injuring animals (Agriculture and Markets Law § 353).   Defendant failed to preserve for our review his contention that the conviction must be reversed as a consequence of a four-month preindictment delay (see People v. Cedeno, 52 N.Y.2d 847, 437 N.Y.S.2d 72, 418 N.E.2d 665;  People v. Herriot, 294 A.D.2d 599, 742 N.Y.S.2d 887, lv. denied 98 N.Y.2d 711, 749 N.Y.S.2d 8, 778 N.E.2d 559;  People v. McCrea, 280 A.D.2d 976, 720 N.Y.S.2d 882, lv. denied 96 N.Y.2d 941, 733 N.Y.S.2d 381, 759 N.E.2d 380), and that contention is without merit in any event (see People v. Beyah, 302 A.D.2d 981, 754 N.Y.S.2d 619, lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281;  People v. Andrade, 301 A.D.2d 797, 798, 755 N.Y.S.2d 107;  People v. Rivera, 298 A.D.2d 612, 747 N.Y.S.2d 854, lv. denied 99 N.Y.2d 619, 757 N.Y.S.2d 830, 787 N.E.2d 1176).   Contrary to defendant's further contentions, the conviction is supported by legally sufficient evidence, and the verdict with respect to arson and criminal mischief is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

The challenges by defendant to Agriculture and Markets Law § 353 as unconstitutionally vague and unconstitutional as applied to his situation are unpreserved for our review, and we decline to exercise our power to review those challenges as a matter of discretion in the interest of justice (see generally People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457;  People v. Peterson, 11 A.D.3d 336, 337, 784 N.Y.S.2d 29, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142;  People v. Rivera, 7 A.D.3d 471, 776 N.Y.S.2d 806, lv. denied 3 N.Y.3d 662, 782 N.Y.S.2d 704, 816 N.E.2d 577;  People v. Miles, 294 A.D.2d 930, 930-931, 741 N.Y.S.2d 774, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232).   We reject the further contention of defendant that he was denied effective assistance of counsel (see generally People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

“To the extent [that] defendant challenges the amount of the restitution order[s] as lacking record support, [his] claim is not properly before this Court for review because [he] did not request a hearing to determine the [proper amount of restitution] or otherwise challenge the amount of the restitution order[s] during the sentencing proceeding” (People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132, citing People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108;  see People v. Bland, 27 A.D.3d 1052, 1053, 810 N.Y.S.2d 718;  People v. McCorkle, 298 A.D.2d 848, 848-849, 747 N.Y.S.2d 819, lv. denied 99 N.Y.2d 561, 754 N.Y.S.2d 213, 784 N.E.2d 86).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: