| People v Lombardi |
| 2009 NY Slip Op 09872 [68 AD3d 1765] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joseph T.Lombardi, Appellant. |
—[*1] Joseph T. Lombardi, defendant-appellant pro se. R. Michael Tantillo, District Attorney, Canandaigua (Neal P. McClelland of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered March 7,2008. The judgment convicted defendant, upon a jury verdict, of felony driving while abilityimpaired by drugs and criminal possession of a controlled substance in the seventh 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 felonydriving while ability impaired by drugs (Vehicle and Traffic Law § 1192 [4]; § 1193[1] [c] [former (i)]) and criminal possession of a controlled substance in the seventh degree(Penal Law § 220.03), defendant contends that he was denied a fair trial based onprosecutorial misconduct. Defendant preserved his contention for our review only with respect toone comment on cross-examination and two comments on summation, and we conclude thatthose comments were not so egregious as to deny defendant a fair trial (see People vRivera, 281 AD2d 927 [2001], lv denied 96 NY2d 906 [2001]). Furthermore,County Court sustained defendant's objections to those comments and issued curativeinstructions that the jury is presumed to have followed (see id.). Defendant failed topreserve for our review his contention with respect to the remaining instances of allegedprosecutorial misconduct on summation (see CPL 470.05 [2]), and we decline to exerciseour power to review them as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Defendant also failed to preserve for our review his contention that the court penalized himfor exercising his right to 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. We have considered the remaining contentions ofdefendant in his main brief and conclude that they are without merit.[*2]
Finally, defendant failed to preserve for our review hiscontention in his pro se supplemental brief that the conviction is not supported by legallysufficient evidence inasmuch as he failed to renew his motion for a trial order of dismissal afterpresenting evidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied97 NY2d 678 [2001]). In any event, that contention lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Present—Hurlbutt, J.P., Smith, Fahey andCarni, JJ.