D., DANIQUA S., PEOPLE v , 937 N.Y.2d 907 ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
101
KA 10-01851
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DANIQUA S.D., DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (VANESSA S. GUITE OF
COUNSEL), FOR RESPONDENT.
Appeal from an adjudication of the Erie County Court (Michael L.
D’Amico, J.), rendered July 13, 2010. Defendant was adjudicated a
youthful offender upon a jury verdict that found her guilty of
criminal possession of stolen property in the fourth degree.
It is hereby ORDERED that the adjudication so appealed from is
unanimously affirmed.
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 [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), 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), 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, lv denied 17 NY3d 819), here defendant is not in fact contending
that the restitution imposed is illegal (see People v Callahan, 80
NY2d 273, 280-281). Instead, defendant contends that the court erred
in relying upon the presentence report to establish the complainant’s
-2- 101
KA 10-01851
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, lv denied 11 NY3d 858).
Entered: February 10, 2012 Frances E. Cafarell
Clerk of the Court