Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

People v. Jones

Supreme Court of New York, Fourth Department

July 19, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
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 [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 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 [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 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 [6] [a]).


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.