Opinion
KA 01-01371
June 14, 2002.
Appeal from a judgment of Ontario County Court (Doran, J.), entered March 16, 2001, convicting defendant after a jury trial of assault in the second degree.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Contrary to the contention of defendant, the verdict convicting him of assault in the second degree (Penal Law § 120.05) is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Also contrary to the contention of defendant, County Court did not err in denying his request shortly after arraignment for substitution of assigned counsel ( see People v. Benson, 265 A.D.2d 814, 814-815, lv denied 94 N.Y.2d 860, cert denied 529 U.S. 1076; People v. Square, 262 A.D.2d 154, lv denied 94 N.Y.2d 829; People v. Frayer, 215 A.D.2d 862, 863, lv denied 86 N.Y.2d 794; People v. Benson, 203 A.D.2d 966, lv denied 83 N.Y.2d 964). Upon our review of the record, we conclude that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147). We further conclude that the sentence is not unduly harsh or severe and that the court properly ordered payment of restitution in the amount of $1,727.22 based upon the victim's testimony and records received at the restitution hearing ( see People v. Morales, 256 A.D.2d 729, lv denied 95 N.Y.2d 868). Defendant's remaining contention is not preserved for our review ( see People v. Krom, 91 A.D.2d 39, 46-47, affd 61 N.Y.2d 187), and 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]).