Opinion
2015-10-21
The PEOPLE, etc., respondent, v. Rene PEREZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Adolfsen of counsel; Roxanne Garcia on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Bryan D. Kreykes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Adolfsen of counsel; Roxanne Garcia on the brief), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered May 16, 2013, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329; People v. Pitre, 108 A.D.3d 643, 643, 968 N.Y.S.2d 585). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity and guilt beyond a reasonable doubt ( see People v. Gordon, 23 N.Y.3d 643, 992 N.Y.S.2d 700, 16 N.E.3d 1178; People v. Gilocompo, 125 A.D.3d 1000, 4 N.Y.S.3d 288; People v. Hoffman, 2 A.D.3d 749, 749, 768 N.Y.S.2d 651; People v. Williams, 155 A.D.2d 394, 395, 548 N.Y.S.2d 20; cf. People v. Hiraeta, 117 A.D.3d 964, 965, 986 N.Y.S.2d 217).
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; 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).
The defendant failed to preserve for appellate review his contention that the sentence imposed by the trial court improperly penalized him for exercising his right to a jury trial, because he did not articulate this issue at the time of sentencing ( see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017; People v. Cherry, 127 A.D.3d 879, 881, 5 N.Y.S.3d 527; People v. Lerner, 116 A.D.3d 1065, 1067, 986 N.Y.S.2d 156). In any event, the contention is without merit ( see People v. Seymore, 106 A.D.3d 1033, 1034, 964 N.Y.S.2d 668; People v. Romero, 101 A.D.3d 906, 907, 955 N.Y.S.2d 214). “The fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for asserting his [or her] right to proceed to trial” (People v. Griffin, 98 A.D.3d 688, 690, 950 N.Y.S.2d 161; see People v. Romero, 101 A.D.3d at 907, 955 N.Y.S.2d 214). 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 offer and his exercise of the right to a jury trial.
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).