People v Green

2006 NYSlipOp 09807

December 22, 2006

Appellate Division, Fourth Department

As corrected through Wednesday, February 14, 2007

The People of the State of New York, Respondent, v Joe Green, Jr., Also Known as Joseph Green, Jr., Appellant.

—[*1]Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered March 22, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree and forcible touching (three counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of one count of burglary in the second degree (Penal Law § 140.25 [2]) and three counts of forcible touching (§ 130.52). Defendant failed to preserve for our review his contention that the sentence imposed by County Court improperly penalized him for declining the plea offer and exercising his right to a jury trial (see People v Hurley, 75 NY2d 887 [1990]). In any event, we conclude that the sentence imposed "was not the product of vindictiveness" (People v Thompson, 299 AD2d 889, 890 [2002], lv denied 99 NY2d 585 [2003]). By failing to object to the court's jury instructions, defendant also failed to preserve for our review his contention that he was deprived of a fair trial by erroneous and confusing jury instructions (see CPL 470.05 [2]; see also People v Whalen, 59 NY2d 273, 279-280 [1983]). 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]).

We reject defendant's further contention that the jury should not have credited the testimony of the victim and the other witnesses and that the verdict thus is against the weight of the evidence. The jury's credibility determination is entitled to great deference, and we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Hurlbutt, J.P., Gorski, Smith and Pine, JJ.