Opinion
2016-03986 Ind. 3688/14
06-16-2021
The People, etc., respondent, v. Marlondo Matthews, appellant.
Brill Legal Group, P.C., Hempstead, NY (David Gray of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
Argued - April 8, 2021
Brill Legal Group, P.C., Hempstead, NY (David Gray of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
HECTOR D. LASALLE, P.J. MARK C. DILLON ROBERT J. MILLER FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alexander Jeong, J.), rendered April 6, 2016, as amended May 10, 2016, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment, as amended, is affirmed.
The defendant was charged by indictment, inter alia, with attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the third degree based on allegations that, with the intent to kill or cause serious physical injury to the complainant, the defendant used a knife or similar weapon against the complainant, attempting to kill him and causing seriously physical injury to him. Prior to trial, the defendant rejected the People's offer to plead guilty to attempted murder in the second degree in exchange for a recommended sentence of a 17-year term of imprisonment.
The case proceeded to a trial before a jury, which ultimately found the defendant not guilty of attempted murder in the second degree and guilty of assault in the first degree and criminal possession of a weapon in third degree. At sentencing, the defendant requested an adjournment in order for him to obtain a supplemental presentence investigation report from an outside organization. The Supreme Court denied the defendant's request and imposed sentence.
The defendant's contention that he was deprived of a fair trial by certain alleged prosecutorial misconduct with regard to overcharging and plea negotiating is unpreserved for appellate review (see CPL 470.05[2]; People v Gonzalez, 220 A.D.2d 230, 230) and improperly based, in part, on matter outside the record (see generally People v Weinberg, 183 A.D.2d 930, 931). In any event, contrary to the defendant's contention, he was not overcharged with attempted murder in the second degree (see People v Bracey, 41 N.Y.2d 296, 301; People v Campbell, 300 A.D.2d 501, 502). Moreover, there is no constitutional right to a plea agreement (see Lafler v Cooper, 566 U.S. 156, 179-180; see also People v Gonzalez, 220 A.D.2d at 230), and the record provides no basis to question whether the prosecutor exercised her plea-negotiating discretion in an evenhanded manner (cf. People v Adams, 20 N.Y.3d 608).
The defendant's contention that he was deprived of a fair trial by certain allegedly improper remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2]; People v Negron, 150 A.D.3d 764, 765). In any event, this contention is without merit, as most, if not all, of the challenged remarks "remained within the broad bounds of rhetorical comment permissible in closing argument" (People v Dorgan, 42 A.D.3d 505, 505 [internal quotation marks omitted]; see People v McHarris, 297 A.D.2d 824, 825) or were "fair comment on the evidence and the inferences to be drawn therefrom" (People v McHarris, 297 A.D.2d at 825). Any prejudice to the defendant caused by the prosecutor's remarks was dissipated by the Supreme Court's instructions to the jury (see People v Brown, 272 A.D.2d 338, 339). To the extent that any of the prosecutor's remarks were improper, they were not so flagrant or pervasive as to deny the defendant a fair trial (see People v Roscher, 114 A.D.3d 812, 813; People v Almonte, 23 A.D.3d 392, 394), and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any such error contributed to his convictions (see People v Roscher, 114 A.D.3d at 813).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his request to adjourn sentencing (see generally People v Johnson, 176 A.D.3d 1103, 1104) and properly considered the presentence investigation report prepared by the Department of Probation in sentencing him. Moreover, the defendant's contention that the court, in sentencing him, penalized him for exercising his right to a jury trial is unpreserved for appellate review (see People v Cruz, 137 A.D.3d 1158, 1160). In any event, the contention is without merit. The fact that the sentence imposed after trial was greater than that offered during plea negotiations is not, standing alone, an indication that the defendant was punished for asserting his right to proceed to trial (see id. at 1160). There is no indication in the record that the sentence was the result of vindictiveness or retribution for the defendant's refusal to accept a plea and his exercise of the right to a jury trial (see id.). To the contrary, it is clear from the record that the court relied upon appropriate factors in sentencing the defendant to a higher sentence than that which he was offered during plea negotiations (see People v Hernandez, 44 A.D.3d 684, 685; People v Gillian, 28 A.D.3d 577, 578, affd 8 N.Y.3d 85; cf. People v Hodge, 154 A.D.3d 963, 965; People v Simmons, 29 A.D.3d 1024, 1025).
Finally, the sentence imposed on the defendant's conviction of assault in the first degree was not excessive (see People v Suitte, 90 A.D.2d 80).
LASALLE, P.J, DILLON, MILLER and CONNOLLY, JJ, concur