| People v Flinn |
| 2012 NY Slip Op 06426 [98 AD3d 1262] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gunther J.Flinn, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Patricia L. Dziuba of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedNovember 30, 2009. The judgment convicted defendant, upon a jury verdict, of attemptedmurder in the second degree, assault in the first degree, intimidating a victim or witness in thefirst degree (two counts), assault in the second degree, obstructing governmental administrationin the second degree, resisting arrest, harassment in the second degree and disorderly conduct.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia,attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]),defendant contends that he was denied his right to be present at all material stages of the trial,specifically, bench conferences involving defense counsel and potential jurors during the juryselection process. The right to be present during sidebar questioning of prospective jurorsregarding matters of bias or prejudice may be waived, provided that the waiver is voluntary,knowing and intelligent (see People v Lucious, 269 AD2d 766, 767 [2000]). Here, weconclude that defendant's failure to attend sidebar conferences after being fully informed of theright to do so constitutes a valid waiver of that right (see People v Inskeep, 272 AD2d966, 966 [2000], lv denied 95 NY2d 866 [2000]).
Defendant contends that County Court committed reversible error in refusing to charge aslesser included offenses the crime of attempted assault in the first degree (Penal Law§§ 110.00, 120.10 [1]) and the crime of assault in the second degree that requiresonly a reckless mental state (§ 120.05 [4]). We reject that contention because there is noreasonable view of the evidence to support a finding that defendant committed those lesseroffenses but not the greater offense of assault in the first degree (see People v VanNorstrand, 85 NY2d 131, 135 [1995]). We note that, although at trial defendant contendedthat certain other lesser included offenses should be charged and he has summarized his requestswith respect to those offenses in a table in his brief on appeal, his contention on appealconcerning lesser included offenses does not address those additional requests. We thus concludethat defendant has abandoned his contention with respect to those additional requests (see generally People v Dombrowski, 94AD3d 1416, 1417 [2012], lv denied 19 NY3d 959 [2012]). Defendant furthercontends that his conviction of attempted murder in the second [*2]degree and assault in the first and second degrees is not supportedby legally sufficient evidence and that the verdict is against the weight of the evidence withrespect to those crimes. Viewing the evidence in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), and according the benefit of every reasonableinference to the People (see People v Ford, 66 NY2d 428, 437 [1985]), we conclude thatthe evidence is legally sufficient with respect to those crimes (see generally People vBleakley, 69 NY2d 490, 495 [1987]). In addition, viewing the evidence in light of theelements of those crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495).
Defendant contends in addition that he was unconstitutionally punished for exercising hisright to a trial. It is well settled that a sentence imposed after trial "may be more severe than apromised sentence in connection with a plea agreement" (People v Chapero, 23 AD3d 492, 493 [2005], lv denied 6NY3d 846 [2006]). "The mere fact that a sentence imposed after trial is greater than that offeredin connection with plea negotiations is not proof that defendant was punished for asserting hisright to [a] trial" (People v Simon, 180 AD2d 866, 867 [1992], lv denied 80NY2d 838 [1992]; see People vChappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]). Here,although defendant was sentenced following the trial to a greater term of imprisonment than thatoffered during plea negotiations, he did not raise his present contention at sentencing and thushas failed to preserve his contention for our review (see People v Motzer, 96 AD3d 1635, 1636 [2012]). In any event,that contention lacks merit because there is no evidence in the record that the court wasmotivated by "retaliation or vindictiveness" in sentencing defendant following the trial(People v Patterson, 106 AD2d 520, 521 [1984]). Defendant's sentence is not undulyharsh or severe. Finally, we have reviewed defendant's remaining contention and conclude that itdoes not require reversal or modification of the judgment. Present—Smith, J.P., Peradotto,Carni, Lindley and Martoche, JJ.