| People v Jones |
| 2010 NY Slip Op 09765 [79 AD3d 1773] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kumar S.Jones, Also Known as Qumar Jones, Also Known as Jesus,Appellant. |
—[*1] Kumar S. Jones, defendant-appellant pro se. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedMarch 11, 2009. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree (two counts).
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 of twocounts of assault in the first degree (Penal Law § 120.10 [1]). Defendant failed to preservefor our review his contention that County Court was biased against him (see CPL 470.05[2]; People v Prado, 4 NY3d725 [2004], rearg denied 4 NY3d 795 [2005]), and we decline to exercise our powerto review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Contrary to the further contentions of defendant, we conclude that the court didnot abuse its discretion in denying his requests for adjournments (see People v Green, 74 AD3d1899, 1900-1901 [2010], lv denied 15 NY3d 852 [2010]), and that the court did notpenalize him for exercising his right to a trial when it imposed a longer term of incarceration thanthat offered during plea negotiations. "The mere fact that a sentence imposed after trial is greaterthan that offered in connection with plea negotiations is not proof that defendant was punishedfor asserting his right to trial . . . , and there is no indication in the record before usthat the sentencing court acted in a vindictive manner based on defendant's exercise of the rightto a trial" (People v Brink, 78 AD3d1483, 1485 [2010] [internal quotation marks omitted]). Indeed, " '[w]here, as here, separateacts are committed against different victims during the same criminal transaction, the court mayproperly impose consecutive sentences in the exercise of its discretion' " (People v Peterson, 71 AD3d 1419,1420 [2010], lv denied 14 NY3d 891 [2010]), and the sentence imposed in this case isnot unduly harsh or severe.
Defendant contends in his pro se supplemental brief that the prosecutor failed to correct thetestimony of three witnesses that was allegedly inconsistent with their prior statements to thepolice (see [*2]People v Hendricks, 2 AD3d 1450, 1451 [2003], lvdenied 2 NY3d 762 [2004]), and that he was denied a fair trial by prosecutorial misconducton summation (see People v Bork,77 AD3d 1278 [2010]). Defendant failed to preserve those contentions for our review(see CPL 470.05 [2]), and we decline to exercise our power to review them as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the contention ofdefendant in his pro se supplemental brief that he was denied effective assistance of counsel isbased upon matters outside the record and is thus properly raised by way of a motion pursuant toCPL article 440 (see People v Jones,63 AD3d 1582, 1583 [2009], lv denied 13 NY3d 797 [2009]).Present—Scudder, P.J., Smith, Green, Pine and Gorski, JJ.