D., DANIQUA S., PEOPLE v

Appellate Division of the Supreme Court of New York

D., DANIQUA S., PEOPLE v

92 A.D.3d 1226, 937 N.Y.2d 907, 937 N.Y.S.2d 907

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 10, 2012

DocketKA 10-01851

StatusPublished

Cited by7 cases

This text of 92 A.D.3d 1226 (D., DANIQUA S., PEOPLE v) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

D., DANIQUA S., PEOPLE v, 92 A.D.3d 1226, 937 N.Y.2d 907, 937 N.Y.S.2d 907 (N.Y. Ct. App. 2012).

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Opinion

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 *1227 [2]). Preliminarily, we note that defendant’s notice of appeal recites incorrect convictions and an incorrect date on which the adjudication was rendered. Defendant’s notice of appeal recites the correct indictment number, however, and thus we treat the notice of appeal as valid, 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 (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), upon viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and according great deference to the jury’s resolution of credibility issues (see generally Bleakley, 69 NY2d at 495). Defendant contends for the first time on appeal that County Court unlawfully ordered her to pay $295 in restitution to the complainant. Although a contention that the restitution portion of a sentence is illegal need not be preserved for our review (see People v McCarthy, 83 AD3d 1533, 1534-1535 [2011], lv denied 17 NY3d 819 [2011]), here defendant is not in fact contending that the restitution imposed is illegal (see People v Callahan, 80 NY2d 273, 280-281 [1992]). Instead, defendant contends that the court erred in relying upon the presentence report to establish the complainant’s out-of-pocket loss in light of the complainant’s trial testimony suggesting that the complainant suffered no out-of-pocket loss. Her contention therefore is “addressed merely to the adequacy of the procedures the court used to arrive at its sentencing determination, specifically its purported overreliance on the presentencing report’s restitution recommendation” (id. at 281). Thus, defendant is raising a procedural issue that 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 of conviction incorrectly reflects that defendant was sentenced at a term of Supreme Court, Erie County, and it must therefore be amended to reflect that she was sentenced at a term of Erie County Court (see generally People v Switzer, 55 AD3d 1394, 1395 [2008], lv denied 11 NY3d 858 [2008]). Present — Scudder, RJ., Centra, Peradotto, Lindley and Martoche, JJ.

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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 *1227 [2]). Preliminarily, we note that defendant’s notice of appeal recites incorrect convictions and an incorrect date on which the adjudication was rendered. Defendant’s notice of appeal recites the correct indictment number, however, and thus we treat the notice of appeal as valid, 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 (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), upon viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and according great deference to the jury’s resolution of credibility issues (see generally Bleakley, 69 NY2d at 495). Defendant contends for the first time on appeal that County Court unlawfully ordered her to pay $295 in restitution to the complainant. Although a contention that the restitution portion of a sentence is illegal need not be preserved for our review (see People v McCarthy, 83 AD3d 1533, 1534-1535 [2011], lv denied 17 NY3d 819 [2011]), here defendant is not in fact contending that the restitution imposed is illegal (see People v Callahan, 80 NY2d 273, 280-281 [1992]). Instead, defendant contends that the court erred in relying upon the presentence report to establish the complainant’s out-of-pocket loss in light of the complainant’s trial testimony suggesting that the complainant suffered no out-of-pocket loss. Her contention therefore is “addressed merely to the adequacy of the procedures the court used to arrive at its sentencing determination, specifically its purported overreliance on the presentencing report’s restitution recommendation” (id. at 281). Thus, defendant is raising a procedural issue that 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 of conviction incorrectly reflects that defendant was sentenced at a term of Supreme Court, Erie County, and it must therefore be amended to reflect that she was sentenced at a term of Erie County Court (see generally People v Switzer, 55 AD3d 1394, 1395 [2008], lv denied 11 NY3d 858 [2008]). Present — Scudder, RJ., Centra, Peradotto, Lindley and Martoche, JJ.

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92 A.D.3d 1226, 937 N.Y.2d 907, 937 N.Y.S.2d 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/d-daniqua-s-people-v-nyappdiv-2012.

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