Opinion
1997-09859
Submitted April 4, 2002.
April 29, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered October 16, 1997, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.
Arza Feldman, Hauppauge, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Florence M. Sullivan, and Dahlia Fredericks of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The prosecution produced sufficient evidence from which a rational jury could infer that the defendant returned to the subject house with the intent to commit a larceny therein, that he unlawfully remained in the house, and that he murdered the victim during the course of the crime. Therefore, the defendant was properly convicted of the felony murder count (see People v. Acosta, 273 A.D.2d 318; People v. Brown, 111 A.D.2d 343). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
Furthermore, the defendant's contention that he was penalized for going to trial rather than accepting a plea offer is unpreserved for appellate review, as it was not raised before the sentencing court (see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, the sentencing minutes indicate that the court relied upon the appropriate factors in sentencing the defendant to a higher sentence than that which was offered during plea negotiations (see People v. Pena, 50 N.Y.2d 400, cert denied 449 U.S. 1087; People v. Cancel, 266 A.D.2d 306; People v. Durkin, 132 A.D.2d 668). The fact that the defendant's sentence was greater than the one he would have received had he pleaded guilty does not establish his entitlement to a lesser sentence (see People v. Hinton, 285 A.D.2d 476; People v. Allah, 283 A.D.2d 436).
FLORIO, J.P., SMITH, LUCIANO and H. MILLER, JJ., concur.