Opinion
617 KA 11-02461
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Theodore PRICE, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25[2] ). Defendant failed to preserve for our review his contention that he was deprived of a fair trial by judicial misconduct (see People v. Brown, 120 A.D.3d 1545, 1545–1546, 992 N.Y.S.2d 591, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a] ).
Defendant contends that he was denied effective assistance of counsel at sentencing because defense counsel withdrew a challenge to defendant's adjudication as a persistent felony offender. We reject that contention inasmuch as the challenge would have had “ ‘little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ). Contrary to defendant's further contention that defense counsel was ineffective for failing to argue against the imposition of the maximum sentence, we conclude that, “given the nature of defendant's criminal record and the criminal conduct herein, ... no statement made by defense counsel at sentencing ‘would have had an impact on the sentence imposed’ ” (People v. Saladeen, 12 A.D.3d 1179, 1180, 785 N.Y.S.2d 250, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143 ).
Defendant “failed to preserve for our review his ... contention that the sentence imposed was a vindictive punishment for rejecting the plea offer and proceeding to trial” (People v. Brown, 111 A.D.3d 1385, 1387, 975 N.Y.S.2d 293, lv. denied 22 N.Y.3d 1155, 984 N.Y.S.2d 638, 7 N.E.3d 1126 ; see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ). In any event, that contention is without merit. “[T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his [or her] right to trial” (People v. Spencer, 108 A.D.3d 1081, 1083, 968 N.Y.S.2d 792, lv. denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [internal quotation marks omitted] ). Finally, we reject defendant's contention that his sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.