People v. Appleby

295 A.D.2d 960, 743 N.Y.S.2d 347, 2002 N.Y. App. Div. LEXIS 6369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2002
• Status: Published

Opinion

—Appeal from a judgment of Ontario County Court (Doran, J.), entered March 16, 2001, convicting defendant after a jury trial of assault in the second degree.

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

Memorandum: Contrary to the contention of defendant, the verdict convicting him of assault in the second degree (Penal Law § 120.05 [1]) is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). Also contrary to the contention of defendant, County Court did not err in denying his request shortly after arraignment for substitution of assigned counsel (see People v Benson, 265 AD2d 814, 814-815, lv denied 94 NY2d 860, cert denied 529 US 1076; People v Square, 262 AD2d 154, lv denied 94 NY2d 829; People v Frayer, 215 AD2d 862, 863, Iv denied 86 NY2d 794; People v Benson, 203 AD2d 966, lv denied 83 NY2d 964). Upon our review of the record, we conclude that defendant received meaningful representation (see People v Baldi, 54 NY2d 137, 147). We further conclude that the sentence is not unduly harsh or severe and that the court properly ordered payment of restitution in the amount of $1,727.22 based upon the victim’s testimony and records received at the restitution hearing (see People v Morales, 256 AD2d 729, lv denied 95 NY2d 868). Defendant’s remaining contention is not preserved for our review (see People v Krom, 91 AD2d 39, 46-47, affd 61 NY2d 187), and 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]). Present—Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.