| People v Thomas |
| 2009 NY Slip Op 02059 [60 AD3d 1341] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RonaldThomas, Appellant. |
—[*1] Ronald Thomas, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Matthew H. James of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedFebruary 9, 2006. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of assaultin the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in thethird degree (§ 265.02 [former (1)]), defendant contends that County Court erred indenying his motion to dismiss the indictment on the ground that he was denied the right to testifybefore the grand jury pursuant to CPL 190.50 (5) (a). We reject that contention. Such a motion"must be made not more than five days after the defendant has been arraigned upon theindictment" (CPL 190.50 [5] [c]; seePeople v Boodrow, 42 AD3d 582, 583-584 [2007]; People v Bourdon, 255AD2d 619, 620 [1998], lv denied 92 NY2d 1028 [1998]) and, here, the motion was madeover three months after defendant's arraignment.
We reject defendant's further contention that the court erred in allowing a witness to make anin-court identification of defendant in the absence of a CPL 710.30 notice or a hearing withrespect to the pretrial identification procedure. Such a notice is required only when there hasbeen a pretrial identification (see CPL 710.30 [1] [b]), and the witness in question wasunable to identify defendant at the pretrial identification procedure (see People vTrammel, 84 NY2d 584, 587-588 [1994]; see also People v Pagan, 248 AD2d 325,325-326 [1998], affd 93 NY2d 891 [1999]). In any event, any alleged error is harmlessinasmuch as identification was not at issue in the trial.
Contrary to defendant's further contention, viewing the evidence in light of the elements ofthe crimes as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The jury was entitled to credit the testimony of the prosecution witnesses with respect tothe events that preceded the shooting (see generally id.). Defendant failed to preserve forour [*2]review his contention that the court penalized him forexercising his right to a trial by imposing a harsher sentence than that included in the pretrialplea offer (see People v Griffin, 48AD3d 1233, 1236-1237 [2008], lv denied 10 NY3d 840 [2008]; People v Tannis, 36 AD3d 635[2007], lv denied 8 NY3d 927 [2007]). 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 withplea negotiations is not proof that defendant was punished for asserting his right to trial' " (People v Chappelle, 14 AD3d728, 729 [2005], lv denied 5 NY3d 786 [2005]), and there is no evidence in therecord that the sentencing court was vindictive (see Tannis, 36 AD3d 635 [2007]). Thesentence is not unduly harsh or severe.
The contention of defendant in his pro se supplemental brief concerning the alleged denial ofeffective assistance of counsel involves matters outside the record on appeal and thus is notreviewable on direct appeal (see Peoplev Martina, 48 AD3d 1271, 1272-1273 [2008], lv denied 10 NY3d 961 [2008];People v Prince, 5 AD3d 1098,1098-1099 [2004], lv denied 2 NY3d 804 [2004]). Defendant failed to preserve for ourreview the contentions in his pro se supplemental brief with respect to the People's allegedviolation of CPL 190.50 (see generallyPeople v Weis, 56 AD3d 900, 901 n [2008]), and with respect to his sentence as apersistent violent felony offender (see People v Samms, 95 NY2d 52, 57 [2000];People v Smith, 73 NY2d 961 [1989]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Martoche, J.P., Fahey, Green, Pine and Gorski, JJ.