| People v Garcia |
| 2007 NY Slip Op 09603 [46 AD3d 573] |
| December 4, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseGarcia, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.),rendered December 13, 2004, convicting him of attempted murder in the second degree, assaultin the first degree (two counts), rape in the first degree, aggravated sexual abuse in the seconddegree, sexual abuse in the first degree, and endangering the welfare of a child (two counts),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 of the chargedoffenses beyond a reasonable doubt. Moreover, resolution of issues of credibility is primarily amatter to be determined by the jury, which saw and heard the witnesses, and its determinationshould be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exerciseof our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the prosecutor's improper comments during her openingremarks and summation constitute reversible error is unpreserved for appellate review.[*2]
The defendant contends that the aggregate term ofimprisonment of 65 years is excessive, particularly in light of the People's offer of a sentence of24 years of imprisonment had he agreed to a plea bargain. We disagree.
While "[i]t is fundamental that retaliation or vindictiveness may not play a role in sentencinga convicted defendant who had elected to proceed to trial rather than plead guilty pursuant to anegotiated bargain" (People v Shaw, 124 AD2d 686, 686 [1986]), "the fact that asentence imposed after trial is greater than that offered during a plea negotiation is no indicationthat the defendant is being punished for asserting his right to proceed to trial" (People vPatterson, 106 AD2d 520, 521 [1984]; see People v Bellilli, 270 AD2d 355 [2000];People v Lam, 226 AD2d 554, 555 [1996]).
Here, a review of the record reveals no retaliation or vindictiveness against the defendant forelecting to proceed to trial. Rather, in imposing sentence, the County Court properly consideredthe defendant's obvious lack of remorse, apparent from the presentence report and the defendant'sown statement at the sentencing hearing, the heinous nature of the crimes, and their effect on thevictim (see People v Farrar, 52 NY2d 302, 305 [1981]; People v Shaw, 124AD2d at 686; People v Suitte, 90 AD2d 80, 83 [1982]). Under these circumstances, theaggregate prison term of 65 years is not excessive (see People v Crandall, 172 AD2d 618[1991]).
We do note, however, that the sentence of 65 years exceeds the maximum length ofimprisonment permitted pursuant to Penal Law § 70.30. Since the sentences here wereimposed upon the defendant's conviction of more than three violent felonies, more than one ofwhich is a class B violent felony, and none of which is a class A felony, Penal Law § 70.30(1) (e) (vi) applies to limit the term of imprisonment, and the aggregate term of imprisonment of65 years must be deemed to be 50 years. The statute does not require this Court to modify orvacate the underlying sentences but "merely requires that the Department of CorrectionalServices calculate the defendant's maximum length of imprisonment consistent with theapplicable limitation" (People v Shaw, 124 AD2d at 687; see People v Moore, 61NY2d 575, 577-578 [1984]; People vJohnson, 33 AD3d 939, 941 [2006]; People v Sutton, 208 AD2d 574, 574[1994]).
The defendant's remaining contention is without merit. Rivera, J.P., Santucci, Krausman andLifson, JJ., concur.