July 19, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DAMITRIA S. JONES, DEFENDANT-APPELLANT.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered September 8, 2011. The judgment convicted defendant, upon a nonjury verdict, of assault in the second degree.
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.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.
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 ), 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 A.D.3d 1436, 1437, lv denied 16 N.Y.3d 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 A.D.3d 1093, 1093, lv denied 3 N.Y.3d 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 A.D.3d 1203, 1204, lv denied 3 N.Y.3d 639).
Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 N.Y.3d 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 A.D.3d 1243, 1243, lv denied 19 N.Y.3d 961; see People v Potter, 13 A.D.3d 1191, 1191, lv denied 4 N.Y.3d 889; see generally CPL 720.20  [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 A.D.3d 1509, 1510, lv denied 14 N.Y.3d 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  [a]).