| People v Motzer |
| 2012 NY Slip Op 04905 [96 AD3d 1635] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Geraldine M.Motzer, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedSeptember 5, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree, robbery in the second degree and endangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of onecount each of robbery in the first degree (Penal Law § 160.15 [3]) and robbery in thesecond degree (§ 160.10 [3]), and two counts of endangering the welfare of a child(§ 260.10 [1]). Defendant failed to preserve for our review her contention that, insentencing her, County Court penalized her for exercising the right to a jury trial, "inasmuch asdefendant failed to raise that contention at sentencing" (People v Stubinger, 87 AD3d 1316, 1317 [2011], lv denied18 NY3d 862 [2011]). In any event, that contention lacks merit. " '[T]he mere fact that a sentenceimposed after trial is greater than that offered in connection with plea negotiations is not proofthat defendant was punished for asserting h[er] right to trial . . . , and there is noindication in the record before us that the sentencing court acted in a vindictive manner based ondefendant's exercise of the right to a trial' " (id.).
Defendant further contends that she was improperly adjudicated a persistent felony offenderbecause the court did not comply with CPL 400.20 (3) when it attached defendant's presentencereport to its order as its "statement" setting forth, inter alia, the dates and places of the priorconvictions that render her a persistent felony offender. In addition, she contends that her dueprocess rights were thereby violated. We conclude that defendant waived her contentions (seegenerally People v Ahmed, 66 NY2d 307, 311 [1985], rearg denied 67 NY2d 647[1986]; People v Perez, 85 AD3d1538, 1541 [2011]). The record establishes that, during the persistent felony offenderhearing, the court offered to adjourn the hearing in order to draft a separate statement pursuant tothe statute. Defense counsel conferred with defendant and, after clarification from the court thatit would attach "just those statements" upon which it was relying, defense counsel expresslydeclined the court's offer.[*2]
Defendant also contends that she was improperlyadjudicated a persistent felony offender because the court did not specifically ask her whether shewished to present any evidence "on the question of [her] background and criminal conduct" (CPL400.20 [7]). Defendant failed to preserve that contention for our review (see People vBrown, 306 AD2d 12, 13 [2003], lv denied 100 NY2d 592 [2003]) and, in any event,it is without merit. Although the court did not use that specific phrase contained in CPL 400.20(7), the court asked defense counsel whether he, inter alia, wanted to controvert any of theinformation in the presentence report, to call any witnesses, and to be heard on the application.Indeed, defense counsel controverted some of the information in the presentence report andargued that defendant should not be adjudicated a persistent felony offender. Thus, the court inessence asked defendant whether she wished to present any evidence and gave her an opportunityto do so.
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,Carni, Lindley and Sconiers, JJ.