THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAMITRIA JONES DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DAMITRIA S. JONES, DEFENDANT–APPELLANT.

KA 11–02035

Decided: July 19, 2013

PRESENT:  SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that County Court erred in denying the motion to suppress her written statement as the fruit of unlawful pre-Miranda questioning.   Contrary to defendant's contention, the court properly 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 Miranda warnings] when [s]he made the statements does not require their suppression” (People v. Semrau, 77 AD3d 1436, 1437, lv denied 16 NY3d 746).

Contrary to defendant's further contention, the identification procedure was not unduly suggestive.  “[T]he subjects depicted in the photo array are sufficiently similar in appearance so that the viewer's attention is not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection” (People v. Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d 646), and the photographs used in the array did not “create a substantial likelihood that the defendant would be singled out for identification” (People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833;  see People v. Egan, 6 AD3d 1203, 1204, lv denied 3 NY3d 639).

Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 NY3d 342, 349), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Additionally, “ ‘[h]aving considered the facts and circumstances of this case,’ “ we reject defendant's contention that the court abused its discretion in denying her youthful offender status (People v. Guppy, 92 AD3d 1243, 1243, lv denied 19 NY3d 961;  see People v. Potter, 13 AD3d 1191, 1191, lv denied 4 NY3d 889;  see generally CPL 720.20[1][a] ).   We decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender (see generally People v. Shrubsall, 167 A.D.2d 929, 930–931).

Finally, defendant's contention that the court erred in ordering her to pay restitution without conducting a hearing is unpreserved for our review inasmuch as defendant did not “request a hearing to determine the [proper amount of restitution] or otherwise challenge the amount of restitution order[ed] during the sentencing proceeding” (People v. Butler, 70 AD3d 1509, 1510, lv denied 14 NY3d 886 [internal quotation marks omitted];  see People v. Horne, 97 N.Y.2d 404, 414 n 3).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Frances E. Cafarell

Clerk of the Court