| People v Jimenez |
| 2011 NY Slip Op 04494 [84 AD3d 1268] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ByronJimenez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeannetteLifschitz, and Suzanne D. O'Hare of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin, J.),rendered March 28, 2008, convicting him of robbery in the first degree, criminal possession of aweapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upona jury verdict, and sentencing him to a determinate term of 10 years' imprisonment and five years'postrelease supervision on the conviction of robbery in the first degree, and definite terms ofimprisonment of one year on the convictions of criminal possession of a weapon in the fourthdegree and criminal possession of stolen property in the fifth degree, respectively, with all termsof imprisonment to run concurrently with each other. The appeal brings up for review the denial,after a hearing, of those branches of the defendant's omnibus motion which were to suppress hisstatements to law enforcement officials and identification evidence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence of imprisonment for robbery in the first degree from a determinate term ofimprisonment of 10 years to seven years, to be followed by a period of five years of postreleasesupervision; as so modified, the judgment is affirmed.
The defendant's contention that certain of the prosecutor's summation comments wereimproper is unpreserved for appellate review (see CPL 470.05 [2]; People vMullings, 83 AD3d 871 [2d Dept 2011]; People v Banks, 74 AD3d 1214, 1215[2010]). In any event, under the circumstances of this case, the challenged remarks did notdeprive the defendant of a fair trial (see People v Houston, 82 AD3d 1122 [2011];People v Bajana, 82 AD3d 1111 [2011]).
The defendant's contention in his pro se supplemental brief that the Supreme Courtimproperly denied that branch of his omnibus motion which was to suppress statements he madeto the police is without merit. The evidence presented at the suppression hearing established thatthe police properly advised the defendant of his Miranda rights, and that he voluntarilywaived them (see Miranda v Arizona, 384 US 436 [1966]; People v Hewitt, 82AD3d 1119 [2011]; People v Scrubb, 70 AD3d 1054 [2010]). Contrary to the defendant'sfurther contention in his pro se supplemental brief, the Supreme Court properly determined thatthe complainant had an independent source for her in-court identification (see People v [*2]Allah, 283 AD2d 436 [2001]; People v Martin, 245AD2d 308 [1997]; People v Bratton, 133 AD2d 408 [1987]).
The defendant's contention that the sentence imposed by the Supreme Court punished himfor exercising his right to a jury trial rather than accepting a plea offer is unpreserved forappellate review (see People v Hurley, 75 NY2d 887, 888 [1990]; People vClerge, 69 AD3d 955, 956 [2010]). In any event, the fact that the sentence imposed after trialwas greater than the sentence offered during plea negotiations is not, standing alone, anindication that the defendant was punished for exercising his right to trial (see People vGivhan, 78 AD3d 730, 731-732 [2010]; People v Johnson, 76 AD3d 1103 [2010];People v Toussaint, 74 AD3d 846 [2010]). However, the sentence is excessive to theextent indicated herein (see People v Suitte, 90 AD2d 80, 86 [1982]).
The defendant's remaining contentions, including those raised in his pro se supplementalbrief, are without merit. Skelos, J.P., Dickerson, Hall and Sgroi, JJ., concur.