Opinion
Submitted October 2, 2001.
October 15, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered January 19, 2000, convicting him of attempted rape in the first degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Debra E. Baker of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N Y (Leonard Joblove and Caroline R. Donhauser of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The Supreme Court properly denied the defendant's request for a mistrial based on the complainant's comment that she had previously been a victim of a sex crime. The court sustained the defendant's objection and instructed the jury to disregard the testimony. Further, when the Supreme Court indicated its willingness to consider some other instruction, the defendant chose to adhere to his demand for a mistrial (see, People v. Young, 48 N.Y.2d 995; People v. Pought, 154 A.D.2d 628).
The defendant has not preserved for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial, since he did not set forth the issue on the record at the time of sentencing (see, People v. Hurley, 75 N.Y.2d 887). In any event, the defendant's claim is without merit. The record discloses no vindictiveness on the part of the Supreme Court in arriving at the sentence. The fact that the sentence imposed after trial was greater than that offered in connection with plea negotiations is irrelevant. The defendant was given the opportunity to serve a lesser sentence to protect the child victim from publicly reliving the events of the attack. Once he elected to go to trial, he forfeited the benefit of that offer (see generally, People v. Miller, 65 N.Y.2d 502).
KRAUSMAN, J.P., McGINITY, H. MILLER and SMITH, JJ., concur.