SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1373 

KA 13-01618 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RANDY JOHNSON, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Genesee County Court (Robert C.

Noonan, J.), rendered April 25, 2013. The judgment convicted

defendant, upon his plea of guilty, of reckless assault of a child. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him, upon his plea of guilty, of reckless assault of a

child (Penal Law § 120.02) in connection with a medical diagnosis

determining that the child victim had sustained serious physical

injury as a result of shaken baby syndrome. Contrary to defendant’s

contention, the record establishes that his waiver of the right to

appeal was made knowingly, intelligently and voluntarily (see People v

Lopez, 6 NY3d 248, 256). County Court explained that defendant was

waiving “almost all issues as to sentence and punishment” including

the length of the sentence, and the written waiver of the right to

appeal set forth both the specific rights that defendant was waiving

and those that were not encompassed by the waiver. The court

ascertained that defendant had reviewed the written waiver with his

attorney, that he understood it, and that he had no questions for his

attorney or the court before signing it (see People v Ramos, 7 NY3d

737, 738; People v Bridenbaker, 112 AD3d 1379, 1379; cf. People v

Bradshaw, 18 NY3d 257, 262). We therefore conclude that defendant’s

valid waiver of the right to appeal encompasses his contention that

the sentence is unduly harsh and severe (see Lopez, 6 NY3d at 256;

People v Connolly, 114 AD3d 1231, 1231-1232, lv denied 23 NY3d 961). 

In any event, that contention is without merit. 

Based upon defendant’s explanation during his plea colloquy of

his actions, i.e., that he had quickly grabbed the victim from the
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KA 13-01618 

basinet on one occasion and had played with him by “tossing” him in a

spinning motion, the court conducted a presentence hearing to obtain

information regarding shaken baby syndrome. The People presented the

testimony of the victim’s treating physician, who is board certified

in emergency pediatric care and pediatric child abuse. She explained

that the injuries required more force to cause an acceleration and

deceleration of the victim’s head than would have occurred by the

actions defendant described. She denied on cross-examination that

certain medical conditions that the victim had were a contributing

factor to his injuries. She acknowledged, however, that one of those

medical conditions, i.e., macrocephali, was a source of controversy in

the medical community with respect to shaken baby syndrome but she

explained that there was no medical evidence to support the theory

that macrocephali contributed to a symptom of shaken baby syndrome,

i.e., subdural hematomas. In any event, the treating physician

explained that the victim lacked spinal fluid between the skull and

the brain, which is the condition that some physicians believe causes

tension on the veins between the skull and the brain, thereby causing

the veins to rupture, resulting in subdural hematomas. She also

denied that the victim’s retinal hemorrhages were related to premature

retinopathy because that condition had healed before the victim

sustained the retinal hemorrhages.

Following the hearing, the court denied defense counsel’s request

for an adjournment of sufficient duration to permit him to consult

with an expert to explore the possibility whether the treating

physician’s testimony could be contradicted, noting that defense

counsel had effectively cross-examined the treating physician. 

Contrary to defendant’s contention, we conclude that the court did not

abuse or improvidently exercise its discretion in denying the

requested adjournment of sentencing (see People v Walker, 115 AD3d

1357, 1357, lv denied 23 NY3d 1069).

We reject defendant’s further contention that he was denied

effective assistance of counsel based upon defense counsel’s failure

to consult with, or provide the testimony of, an expert to rebut the

testimony of the victim’s treating physician with respect to shaken

baby syndrome. Defendant has failed to meet his burden of

establishing that “such expert testimony was available, that it would

have assisted the [court] in its determination or that he was

prejudiced by its absence” (People v Woolson, 122 AD3d 1353, 1354

[internal quotation marks omitted]; see People v West, 118 AD3d 1450,

1451, lv denied 24 NY3d 1048). Moreover, the record establishes that

defense counsel consulted with medical professionals and effectively

cross-examined the treating physician. Viewing “the evidence, the

law, and circumstances of [this] case, . . . in totality and as of the

time of the representation” (People v Baldi, 54 NY2d 137, 147), we

conclude that defendant received meaningful representation (cf. People

v Oliveras, 21 NY3d 339, 348). 

In appeal No. 2, defendant contends that the court erred in

ordering restitution in the amount of $7,378 to be paid to the Genesee

County Department of Social Services (DSS) for the cost of providing

foster care for the victim. Inasmuch as that item of restitution
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KA 13-01618 

affects the legality of the sentence, the contention is not

encompassed in the waiver of the right to appeal (see People v

Boatman, 110 AD3d 1463, 1463-1464, lv denied 22 NY3d 1039; see

generally People v Seaburg, 74 NY2d 1, 9). We agree with defendant

that the court erred in determining that DSS was the victim’s

“guardian” (see Executive Law § 621 [6]), and therefore qualified to

obtain restitution for the cost of providing foster care as a “victim”

pursuant to Penal Law § 60.27. We therefore modify the order

accordingly.

It is well established that restitution may be required for

expenses that “were not voluntarily incurred, but stem from legal

obligations that are directly and causally related to the crime”

(People v Cruz, 81 NY2d 996, 998; see People v McCarthy, 83 AD3d 1533,

1535, lv denied 17 NY3d 819; People v McDaniel, 219 AD2d 861, 861). 

Here, however, the foster care expenses are the result of the

placement of the victim in the care and custody of DSS pursuant to a

proceeding in Family Court (see Family Ct Act § 1055 [1]), and thus

DSS is performing its statutory duty pursuant to Social Services Law §

398 (2) (b). We note that the Legislature has specifically provided

that certain governmental agencies and entities are entitled to

restitution when performing their statutory duties (see Penal Law §

60.27 [9], [10], [13]). Section 60.27 (9), for example, was enacted

to permit restitution to police agencies for unrecovered funds used in

undercover drug purchases following the decision in People v Rowe (152

AD2d 907, 909, affd 75 NY2d 948, 949). In Rowe, we determined that,

absent legislative intent to include a city police department as a

“victim,” such funds could not be recovered by means of a court order

of restitution. Similarly, here, in the absence of legislative intent

that DSS is a “victim” pursuant to Penal Law § 60.27, we decline to

impose an obligation on defendant to pay restitution for the

expenditure of public funds for providing foster care for the victim. 

Entered: February 6, 2015 Frances E. Cafarell

Clerk of the Court