| People v Bradley |
| 2010 NY Slip Op 04607 [73 AD3d 1198] |
| May 25, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gerald Bradley, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Efman, J.),rendered August 20, 2008, convicting him of operating a motor vehicle under the influence ofalcohol, operating a motor vehicle without a valid certificate of inspection, and operating a motorvehicle without a safety belt, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the admission into evidence of a recording of a witness'stelephone call to the 911 emergency number constituted improper bolstering is without merit.The recording was properly admitted as a present sense impression, as the call containedspontaneous descriptions of events made substantially contemporaneously with the witness'sobservations, and her descriptions were independently corroborated by other evidence (seePeople v Buie, 86 NY2d 501, 508 [1995]; People v Brown, 80 NY2d 729, 734[1993]; People v Ross, 237 AD2d 467 [1997]). Therefore, the admission of the recordingdid not constitute improper bolstering (see People v Buie, 86 NY2d at 509; People vCarr, 277 AD2d 246 [2000]; People v Farrell, 228 AD2d 693 [1996]; People vHughes, 228 AD2d 618 [1996]).
The defendant's contention that the evidence was legally insufficient to establish his guilt ofoperating a motor vehicle under the influence of alcohol beyond a reasonable doubt isunpreserved for appellate review, as he makes a different argument on appeal from that which hemade on his motion to dismiss (see People v Crawford, 38 AD3d 680 [2007]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish his guiltbeyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]); People v Danielson,9 NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Under the circumstances of this case, and in view of the defendant's repeated convictions[*2]of driving while intoxicated, the sentence imposed was notexcessive (see People v Alleyne, 214 AD2d 575 [1995]; People v Erali, 201AD2d 665 [1994]; People v Ruquet, 121 AD2d 482 [1986]). The fact that the sentenceimposed after trial was greater than the sentence offered during plea negotiations is no indicationthat the defendant was punished for exercising his right to proceed to trial (see People vZurita, 64 AD3d 800 [2009]; People v Franco, 48 AD3d 477 [2008]). There was noconsiderable disparity between the sentence offered prior to trial and the sentence ultimatelyimposed after trial (compare People v Riback, 57 AD3d 1209 [2008], revd 13NY3d 416 [2009]; People v Morton, 288 AD2d 557 [2001], cert denied 537 US860 [2002]; People v Cosme, 203 AD2d 375 [1994]). Mastro, J.P., Miller, Leventhal andBelen, JJ., concur.