| People v Garner |
| 2016 NY Slip Op 01069 [136 AD3d 1374] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBarbara J. Garner, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Linda M. Campbell of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered July 1, 2011. The judgment convicted defendant, upon a jury verdict, of assaultin the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her following a jurytrial of assault in the first degree (Penal Law § 120.10 [1]). By failing torenew her motion for a trial order of dismissal after presenting evidence, defendant failedto preserve for our review her challenge to the legal sufficiency of the evidence withrespect to the element of serious physical injury (see generally People v Brown, 120 AD3d 1545, 1546[2014], lv denied 24 NY3d 1082 [2014]). In any event, that contention is withoutmerit. The testimony of the People's medical expert that, if left untreated, the victim'spneumothorax created a significant risk of death is legally sufficient to establish theelement of serious physical injury (see People v Barbuto, 126 AD3d 1501, 1502 [2015], lvdenied 25 NY3d 1159 [2015]; People v Guillen, 65 AD3d 977, 977 [2009], lv denied13 NY3d 939 [2010]). Viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant failed to preserve for our review her contention that she was denied a fairtrial based on prosecutorial misconduct (see CPL 470.05 [2]), and we decline toexercise our power to review defendant's contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Defendant likewise failed to preservefor our review her contention that County Court, in determining the sentence to beimposed, penalized her for exercising her right to a jury trial (see People v Stubinger, 87AD3d 1316, 1317 [2011], lv denied 18 NY3d 862 [2011]; People v Brink, 78 AD3d1483, 1485 [2010], lv denied 16 NY3d 742 [2011], reconsiderationdenied 16 NY3d 828 [2011]). In any event, that contention is without merit. "[T]hemere fact that a sentence imposed after trial is greater than that offered in connectionwith plea negotiations is not proof that defendant was punished for asserting [her] rightto trial . . . , and there is no indication in the record before us that thesentencing court acted in a vindictive manner based on defendant's exercise of the rightto a trial" (Brink, 78 AD3d at 1485 [internal quotation marks omitted]). "Inaddition, '[t]he fact that defendant's sentence was greater than that of [her] codefendant[,who accepted a plea agreement,] does not substantiate [her contention] that [she] wasimproperly punished for going to trial' " (People v Smith, 90 AD3d 1565, 1567 [2011], lv denied18 NY3d 998 [2012]). Defendant's sentence is not unduly harsh or severe.Present—Smith, J.P., Carni, Lindley and DeJoseph, JJ.