| People v Brown |
| 2009 NY Slip Op 08385 [67 AD3d 1427] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JermaineBrown, Appellant. (Appeal No. 1.) |
—[*1] Jermaine Brown, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered June 22, 2005. The judgment convicted defendant, upon a jury verdict, of assault in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofassault in the first degree (Penal Law § 120.10 [1]). Defendant failed to preserve for ourreview his contention that Supreme Court penalized him for exercising his right to trial byimposing a more severe sentence after trial than that offered as part of the plea bargain (see People v Slater, 61 AD3d1328, 1329 [2009], lv denied 13 NY3d 749 [2009]). In any event, that contention iswithout merit. "The imposition of a more severe sentence after trial than that offered todefendant pursuant to a plea offer that he rejected, without more, does not support the contentionof defendant that he was penalized for exercising his right to go to trial" (People v Jones,229 AD2d 980, 980 [1996], lv denied 89 NY2d 925 [1996]), and the record contains noevidence that the sentence was " 'the product of vindictiveness' " (Slater, 61 AD3d at1329). Defendant failed to preserve for our review his further contention that the evidence islegally insufficient to establish his intent to cause serious physical injury inasmuch as his motionfor a trial order of dismissal was not specifically directed at that issue (see People vGray, 86 NY2d 10, 19 [1995]). Contrary to defendant's contention, the evidence is legallysufficient to establish that the victim sustained a serious physical injury (see People vThompson, 224 AD2d 646 [1996], lv denied 88 NY2d 970 [1996]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elementsof assault in the first degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). We reject the further contention of defendant that he was denied effectiveassistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Theremaining contentions of defendant, [*2]including those raised inhis pro se supplemental brief, are not preserved for our review (see CPL 470.05 [2]), andwe decline to exercise our power to review those contentions as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Present—Martoche, J.P., Smith,Fahey, Carni and Pine, JJ.