People v. Melino

15 Citing cases

  1. People v. Melino

    52 A.D.3d 1054 (N.Y. App. Div. 2008)   Cited 11 times

    Rose, J. Defendant was convicted of multiple counts of grand larceny in the third and fourth degrees and petit larceny for his role in diverting funds paid in trust to Regency Construction, LLC, in violation of Lien Law ยง 79-a, as is more fully described in our decision of the appeal taken by his codefendant and daughter, Michelle Melino ( People v Melino, 16 AD3d 908, lv denied 5 NY3d 791). Supreme Court sentenced defendant as a second felony offender to an aggregate prison term of 3ยฝ to 7 years, and held him jointly and severally responsible with his daughter for the payment of $78,990.15 in restitution.

  2. People v. Doty

    No. 10-068-I (N.Y. Sep. 7, 2011)

    First, contrary to the defendant's contention, the People are not required to charge the grand jury under Lien Law ยง79-a(1)(b) in presenting larceny and fraud charges against the defendant. "Lien Law article 3-A provides that a general contractor who receives funds on a project holds the funds as a trustee and if the contractor applies or consents to the use of those funds for any purpose other than valid trust purposes, he or she is deemed to have diverted trust funds and may be guilty of larceny for failure to pay trust claims within 31 days of the time the claim is due (see Lien Law ยง79-a [1] [b]; ยงยง70, 71; People v. Melino, 16 AD3d 908, 909, 791 NYS2d 718 [2005], lv. denied 5 NY3d 791, 801 NYS2d 812, 835 NE2d 672 [2005]; see also Aspro Mech. Contr. v. Fleet Bank, 1 NY3d 324, 328, 773 NYS2d 735, 805 NE2d 1037 [2004]). Significantly, failure of such a trustee to maintain the requisite books and records constitutes presumptive evidence of diversion (see Lien Law ยง 75[4])" People v. Miller, 23 AD3d 699, 700, 803 NYS2d 734, 736, leave to appeal denied 6 NY3d 815, 812 NYS2d 455, 845 NE2d 1286).

  3. People v. Melino

    835 N.E.2d 672 (N.Y. 2005)

    July 7, 2005. Appeal from 3d Dept: 16 AD3d 908 (Albany). Application in criminal case for leave to appeal denied.

  4. People v. Pawaroo

    210 A.D.3d 440 (N.Y. App. Div. 2022)   Cited 2 times

    In imposing the original restitution order as a condition of probation pursuant to Penal Law ยง 65.10(2)(g), the court, which took into account defendant's real estate holdings and other matters, duly considered her ability to pay restitution; in any event, when defendant's probation was revoked, the court reissued the restitution order in the amount of $382,462.70 to reflect the payment of $200,000 already made, and that order of restitution, issued pursuant to Penal Law ยง 60.27, did not require consideration of defendant's ability to pay. Finally, the amount of restitution properly compensated the victim for his out-of-pocket loss arising out of the entire criminal transaction, not limited to the loss alleged in the indictment (see Penal Law 60.27[1], [4][a] ; People v. Melino, 16 A.D.3d 908, 910, 791 N.Y.S.2d 718 [3d Dept. 2005], lv denied 5 N.Y.3d 791, 801 N.Y.S.2d 812, 835 N.E.2d 672 [2005] ).

  5. People v. Cioffi

    105 A.D.3d 971 (N.Y. App. Div. 2013)   Cited 8 times

    05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendants' guilt of grand larceny in the third degree based upon a violation of Lien Law ยง 79โ€“a beyond a reasonable doubt ( see People v. Miller, 23 A.D.3d 699, 700โ€“701, 803 N.Y.S.2d 734;People v. Melino, 16 A.D.3d 908, 909โ€“910, 791 N.Y.S.2d 718;People v. Lincoln, 272 A.D.2d 945, 945โ€“946, 709 N.Y.S.2d 279). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

  6. People v. Isaacs

    71 A.D.3d 1161 (N.Y. App. Div. 2010)   Cited 20 times

    ge to the amount of restitution and reparation imposed at sentencing is not foreclosed by his waiver of the right to appeal ( see People v McLean, 59 AD3d 859, 860-861; People v Sartori, 8 AD3d 748, 749; People v Sweeney, 4 AD3d 769, 770). However, to the extent that the defendant challenges the portion of the sentence requiring him to pay reparations for damage to the automobile as lacking in record support or contends that the Supreme Court should have conducted a restitution hearing, any such contentions, as well as the defendant's contention that restitution to the convenience store was unwarranted, are unpreserved for appellate review by virtue of the defendant's failure, at the sentencing proceeding, to raise any objection to the imposition of restitution and reparations, or contest the amount thereof, or request a hearing ( see People v Horne, 97 NY2d 404, 414 n3 [2002]; People v Callahan, 80 NY2d 273, 281; People v Golgoski, 40 AD3d 1138; People v Williams, 28 AD3d 1005, 1011; People v Melino, 16 AD3d 908, 911; People v Owens, 10 AD3d 619), and we decline to review them in the exercise of our interest of justice jurisdiction. To the extent that the defendant contends that the portion of the sentence requiring him to pay reparations for damage to the automobile is illegal because he was not charged with criminal mischief, and restitution or reparations for losses caused by an uncharged offense is not statutorily authorized, his contention is without merit ( see Penal Law ยง 60.27 [a]; People v Prewett, 126 AD2d 86; see also People v Sheehy, 274 AD2d 844, 846; People v Palella, 148 AD2d 838, 839; cf. People v Home, 97 NY2d at 412-413; People v Asch, 160 AD2d 1038, 1039).

  7. People v. Rivera

    70 A.D.3d 1484 (N.Y. App. Div. 2010)   Cited 9 times

    "[D]efendant failed to meet his burden of demonstrating the absence of strategic or other legitimate explanations for [defense] counsel's alleged shortcomings" ( People v Childres, 60 AD3d 1278, 1278, lv denied 12 NY3d 913 [internal quotation marks omitted]). Finally, defendant correctly concedes that he failed to preserve for our review his further contention that, based on Penal Law ยง 60.27 (5) (a), the court was not authorized to order restitution in excess of $15,000 ( see generally People v Peck, 31 AD3d 1216, lv denied 9 NY3d 992; People v Melino, 16 AD3d 908, 911, lv denied 5 NY3d 791). In any event, we conclude that the court properly ordered restitution in an amount sufficient to compensate the victims for their "actual out-of-pocket loss" caused by defendant's criminal conduct (Penal Law ยง 60.27; see generally People v Home, 97 NY2d 404, 412; People v Denno, 56 AD3d 902, 903-904, lv denied 12 NY3d 757).

  8. People v. Stephens

    51 A.D.3d 1225 (N.Y. App. Div. 2008)   Cited 5 times

    We affirm. To the extent that defendant challenges the amount of restitution ordered, defendant's failure to request a hearing or otherwise contest that sum at sentencing renders this claim unpreserved for our review ( see People v Snyder, 38 AD3d 1068, 1069; People v Hayward, 31 AD3d 1195, 1195-1196; People v Williams, 28 AD3d 1005, 1011, lv denied 7 NY3d 819; People v Melino, 16 AD3d 908, 911, lv denied 5 NY3d 791). Were we to reach this issue, we would observe that although there initially was some dispute as to the amount of restitution to be ordered, sentencing was adjourned to explore this issue, the People subsequently requested that the restitution order be amended, defense counsel indicated defendant's acceptance of the revised figure and the record as a whole supports the amount of restitution awarded. As for defendant's related claims that she lacked the capacity to agree to the restitution ordered because she was under the influence of certain prescription medication at the time of sentencing and that she was denied the effective assistance of counsel because counsel allegedly failed to, among other things, adequately explain the basis for the amount of restitution imposed, we need note only that there is nothing in the sentencing minutes that raises any questions regarding defendant's mental clarity or capacity at the time the revised restitution figure was ag

  9. People v. Golgoski

    40 A.D.3d 1138 (N.Y. App. Div. 2007)   Cited 19 times

    Next, defendant's assertion that County Court erred by failing to conduct a restitution hearing is unpreserved given that he never disputed the amount or propriety of restitution nor requested such a hearing during sentencing ( see People v Snyder, 38 AD3d 1068, 1069; People v Williams, 28 AD3d 1005, 1011, lv denied 7 NY3d 819; People v Melino, 16 AD3d 908, 911, lv denied 5 NY3d 791; People v Drew, 16 AD3d 840, 841; see also People v Home, 97 NY2d 404, 414, n 3 [2002]). In any event, a restitution hearing was not required as the amount of restitution ordered was adequately supported in the record in the form of an itemized list prepared by the police setting forth the unrecovered stolen property and the corresponding values ( see Penal Law ยง 60.27; People v Drew, supra at 841; see also People v Tzitzikalakis, 8 NY3d 217, 221; People v Kim, 91 NY2d 407, 410-411 ; cf. People v Consalvo, 89 NY2d 140, 144-146; People v Peters, 299 AD2d 663, 664)

  10. People v. Snyder

    38 A.D.3d 1068 (N.Y. App. Div. 2007)   Cited 10 times

    Defendant further contends that the amount of restitution ordered is not supported by the record and that County Court erroneously imposed a 10% restitution surcharge. However, inasmuch as defendant did not request a restitution hearing or otherwise contest the amount of restitution ordered during the proceedings before County Court, his challenge to the amount of restitution awarded is not preserved for our review ( see People v Home, 97 NY2d 404, 414 n 3 [2002]; People v Williams, 28 AD3d 1005, 1011, lv denied 7 NY3d 819; People v Melino, 16 AD3d 908, 911, lv denied 5 NY3d 791). To the extent that defendant failed to object at sentencing to County Court's imposition of the 10% surcharge, this claim is also not preserved.