| People v Hernandez |
| 2007 NY Slip Op 07459 [44 AD3d 684] |
| October 2, 2007 |
| Appellate Division, Second Department |
| 76—The People of the State of New York,Respondent, v Juan Hernandez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Karen Wigle Weiss of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered May 17, 2005, convicting him of attempted burglary in the second degree, criminalmischief in the fourth degree, possession of burglar's tools, and unlawful possession of radiodevices, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19-21 [1995]; People v Ayala, 15 AD3d 496[2005]; People v Montalbo, 254 AD2d 504, 505 [1998]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, resolution of issues of credibility is primarily a matter to bedetermined by the jury, which saw and heard the witnesses, and its determination should beaccorded great deference on appeal (seePeople v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
Since the defendant expressly requested that portion of the trial court's Sandovalruling (see People v Sandoval, 34 NY2d 371 [1974]) that pertained to his priorfelony conviction, the defendant's Sandoval claim was waived to the extent that he arguesthat this part of the court's ruling [*2]was in error, as well asbeing unpreserved for appellate review (see People v Jones, 256 AD2d 30, 31 [1998];People v Lugo, 233 AD2d 197, 198 [1996]; People v Medina, 171 AD2d 559[1991]). Moreover, since the defendant did not articulate any reasons in support of any of hisSandoval applications, the remainder of his instant Sandoval claim is alsounpreserved for appellate review (see CPL 470.05 [2]; People v Jones, 41 AD3d 507, 508[2007]; People v Melvin, 223 AD2d 604 [1996]). In any event, the court'sSandoval rulings constituted an appropriate exercise of the court's discretion (seePeople v Sandoval 34 NY2d 371 [1974]; People v Cooper, 36 AD3d 828 [2007]; People v Louisias, 29 AD3d 1017[2006]).
Since the defendant's claim regarding ineffective assistance of counsel involves matterdehors the record, it may not be reviewed on direct appeal (see People v Maize, 40 AD3d 884 [2007]; People v Hernandez, 42 AD3d 657[2007]).
Despite the defendant's contention that the court violated his due process rights byvindictively sentencing him to a term greater than that offered to him as part of a pretrial pleaagreement, the sentencing court explicitly took the relevant sentencing principles intoconsideration and imposed a proper sentence. There is no evidence that the court imposed thesentence with the aim of punishing the defendant for going to trial (see People v Pena, 50NY2d 400, 411-412 [1980]; People v Mack, 293 AD2d 761, 762 [2002]; People vDurkin, 132 AD2d 668, 669 [1987]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Schmidt, J.P., Rivera, Krausman and Florio, JJ., concur.