| People v Murphy |
| 2009 NY Slip Op 09824 [68 AD3d 1730] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Philip L.Murphy, Jr., Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedFebruary 8, 2008. The judgment convicted defendant, upon a jury verdict, of sexual abuse in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of sexualabuse in the first degree (Penal Law § 130.65 [1]), defendant contends that County Courtpenalized him for exercising his right to trial. We reject that contention. " '[T]he mere fact that asentence imposed after trial is greater than that offered in connection with plea negotiations isnot 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 indication in therecord that the court was vindictive in sentencing defendant (see People v Griffin, 48 AD3d 1233, 1237 [2008], lv denied10 NY3d 840 [2008]). We reject the further contention of defendant that he was deniedeffective assistance of counsel based on defense counsel's failure to pursue an intoxicationdefense, inasmuch as there was "a paucity of evidence that defendant exhibited significant signsof intoxication or that his mental state was affected by alcohol" (People v Van Ness, 43 AD3d 553,555 [2007], lv denied 9 NY3d 965 [2007]). Present—Scudder, P.J., Fahey, Carniand Gorski, JJ.