| People v Dorn |
| 2010 NY Slip Op 02352 [71 AD3d 1523] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dorene K.Dorn, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered May11, 2009. The judgment convicted defendant, upon a jury verdict, of grand larceny in the seconddegree and conspiracy in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her following a jury trial of grandlarceny in the second degree (Penal Law § 155.40 [1]) and conspiracy in the fourth degree(§ 105.10 [1]), defendant contends that County Court violated her constitutional right topresent a defense when it precluded her from introducing letters and statements from thedeceased victim (see generally Chambers v Mississippi, 410 US 284 [1973]). Contrary tothe contention of defendant, that constitutional challenge must be preserved for our review, andshe failed to do so (see People v Gonzalez, 54 NY2d 729, 730 [1981]; People vSimmons, 283 AD2d 306 [2001], lv denied 96 NY2d 924 [2001]). After each of theprosecutor's objections concerning those letters and statements, defense counsel proceeded withhis direct examination of defendant, "never calling to the . . . court's attention thepurpose of the [evidence] . . . or in any way attempting to call the court's attentionto the nature of the alleged error" (People v George, 67 NY2d 817, 819 [1986]; seePeople v Crawford-Brown, 270 AD2d 825 [2000], lv denied 95 NY2d 795 [2000];see also People v Rivera, 281 AD2d 155 [2001], lv denied 96 NY2d 833 [2001]).In any event, defendant's contention involves facts outside the record on appeal and musttherefore be raised by way of a CPL article 440 motion (see generally People v Exum, 66 AD3d 1336 [2009]; People v Lando, 61 AD3d 1389[2009], lv denied 13 NY3d 746 [2009]).
Defendant also failed to preserve for our review her contention that the court "improperlypenalized [her] for exercising [her] right to a jury trial [because she] did not raise the issue at thetime of sentencing" (People vTannis, 36 AD3d 635 [2007], lv denied 8 NY3d 927 [2007]; see People v Griffin, 48 AD3d1233, 1236-1237 [2008], lv denied 10 NY3d 840 [2008]). In any event, thatcontention lacks merit. " '[T]he mere fact that a sentence imposed after trial is greater than thatoffered in connection with plea negotiations is not proof that defendant was punished forasserting [her] right to trial' " (People vChappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]; see People v Murphy, 68 AD3d1730 [2009]), and "the record shows no retaliation or vindictiveness against the defendantfor electing to proceed to trial" (People v Shaw, 124 AD2d 686, 686 [1986], lvdenied 69 NY2d 750 [1987]; seePeople v Brown, 67 AD3d 1427 [2009]; People v Slater, 61 AD3d 1328, 1329 [2009], lv denied 13NY3d 749 [2009]). Although defendant received a greater sentence than her coconspirator, weconclude that the [*2]disparity is justified under thecircumstances of this case and that the sentence is not unduly harsh or severe.Present—Smith, J.P., Centra, Lindley, Sconiers and Pine, JJ.