People v. Miller

• Decision Date: 01 May 2020
• Docket Number: KA 18–01175,475
• Citation: 183 A.D.3d 1268,121 N.Y.S.3d 718 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Steffan J. MILLER, Defendant–appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1268

121 N.Y.S.3d 718 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Steffan J. MILLER, Defendant–appellant.

475

KA 18–01175

Supreme Court, Appellate Division, Fourth Department, New York.

May 1, 2020

STEVEN A. FELDMAN, MANHASSET, FOR DEFENDANT–APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of assault in the second degree ( Penal Law § 120.05 [9] ) and endangering the welfare of a child (§ 260.10[1] ). Defendant "made only a general motion for a trial order of dismissal, and thus failed to preserve for our review his challenge to the legal sufficiency of the evidence" ( People v. Alejandro, 60 A.D.3d 1381, 1382, 876 N.Y.S.2d 281 [4th Dept. 2009], lv denied 12 N.Y.3d 850, 881 N.Y.S.2d 662, 909 N.E.2d 585 [2009] ; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, defendant's contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant contends that County Court lacked jurisdiction to order postjudgment restitution because the People did not state at or before sentencing that they were seeking restitution. Rather, upon a recommendation set forth in the presentence report, the court stated at sentencing that it would impose restitution at a later date. Defendant thereafter waived a hearing and consented to restitution totaling $2,764.08. Although defendant's jurisdictional challenge need not be preserved for our review (see People v. Naumowicz, 76 A.D.3d 747, 749, 907 N.Y.S.2d 353 [3d Dept. 2010] ; see generally People v. Stewart, 151 A.D.3d 1860, 1861, 54 N.Y.S.3d 351 [4th Dept. 2017] ), we conclude that the court's "deferral of restitution issues did not work to deprive it of jurisdiction to thereafter impose restitution as it had announced it would do at sentencing" ( People v. Bauer, 229 A.D.2d 502, 502, 645 N.Y.S.2d 323 [2d Dept. 1996] ; see People v. Jackson, 180 A.D.2d 755, 755, 580 N.Y.S.2d 390 [2d Dept. 1992] ). Insofar as defendant contends that the court erred in deferring the restitution issue absent a request from the People, we conclude that defendant failed to preserve his contention for our review (see CPL 470.05[2] ; cf. People v. Kevin C., 265 A.D.2d 828, 828–829, 697 N.Y.S.2d 217 [4th Dept. 1999] ), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Defendant further contends that the court abused its discretion in issuing a no-contact order of protection in favor of the child victim's mother. We reject that contention. The court had the power to issue an order of protection and set the terms thereof, even without the mother's consent (see People v. Walker, 151 A.D.3d 1730, 1731, 57 N.Y.S.3d 806 [4th Dept. 2017], lv denied 29 N.Y.3d 1135, ...