        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

736
KA 11-02035
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAMITRIA S. JONES, DEFENDANT-APPELLANT.


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.


     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.

     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 AD3d 1436, 1437, lv denied 16 NY3d
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 AD3d 1093, 1093, lv denied 3 NY3d 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 NY2d 327, 336, cert denied 498 US 833; see People v Egan, 6
AD3d 1203, 1204, lv denied 3 NY3d 639).

     Viewing the evidence in light of the elements of the crime in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
                                 -2-                           736
                                                         KA 11-02035

further conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 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 AD3d 1243, 1243, lv denied 19 NY3d 961; see People v Potter,
13 AD3d 1191, 1191, lv denied 4 NY3d 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 AD2d 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 AD3d 1509, 1510, lv denied 14 NY3d 886 [internal
quotation marks omitted]; see People v Horne, 97 NY2d 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]).




Entered:   July 19, 2013                       Frances E. Cafarell
                                               Clerk of the Court
