| People v Washington |
| 2018 NY Slip Op 02996 [160 AD3d 1451] |
| April 27, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Desmond Washington, Appellant. (Appeal No.1.) |
Peter J. Digiorgio, Jr., Utica, for defendant-appellant.
Desmond Washington, defendant-appellant pro se.
Jeffrey S. Carpenter, District Attorney, Herkimer (Robert R. Calli, Jr., of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (John H. Crandall, J.), renderedDecember 9, 2014. The judgment convicted defendant, upon a nonjury trial, of criminal sale of acontrolled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by directing that the sentences imposed shall runconcurrently and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him followinga nonjury trial of two counts of criminal sale of a controlled substance in the third degree (PenalLaw § 220.39 [1]) and, in appeal No. 2, he appeals from a judgment convicting himupon his plea of guilty of criminal possession of a controlled substance in the third degree(§ 220.16 [1]).
Defendant's challenge in appeal No. 1 to the legal sufficiency of the evidence with respect tothe credibility of the People's witnesses is unpreserved for our review because defendant did notraise that ground in support of his motion for a trial order of dismissal (see People v Beard, 100 AD3d1508, 1509 [4th Dept 2012]). Viewing the evidence in light of the elements of the crime inthe nonjury trial in appeal No. 1 (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contentionthat the verdict is against the weight of the evidence based on his challenge to the credibility oftwo of the People's witnesses (see generally People v Bleakley, 69 NY2d 490, 495[1987]). "[I]ssues of credibility, as well as the weight to be accorded to the evidence presented,are primarily questions to be determined by the [factfinder]" (People v Witherspoon, 66 AD3d 1456, 1457 [4th Dept 2009], lvdenied 13 NY3d 942 [2010] [internal quotation marks omitted]; see People v Smith, 145 AD3d1628, 1629 [4th Dept 2016]). "Testimony will be deemed incredible as a matter of law onlywhere it is 'manifestly untrue, physically impossible, contrary to experience, orself-contradictory' " (People vSmith, 73 AD3d 1469, 1470 [4th Dept 2010], lv denied 15 NY3d 778 [2010]),and here the testimony of those two witnesses was not incredible as a matter of law.
Defendant further contends in appeal No. 1 that County Court, in sentencing him to twoconsecutive nine-year terms of incarceration, penalized him for exercising his right to a jury trial.We reject that contention. " '[T]he 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 [a] trial' " (People v Chappelle, 14 AD3d 728, 729 [3d Dept 2005], lvdenied 5 NY3d 786 [2005]; seePeople v Murphy, 68 AD3d 1730, 1731 [4th Dept 2009], lv denied 14 NY3d 843[2010]). Indeed, " '[g]iven that the quid pro quo of the bargaining process willalmost necessarily involve offers to moderate sentences that ordinarily would be greater, it is alsoto be anticipated that sentences handed out after trial may be more severe than those proposed inconnection with a plea' " (People v Martinez, 26 NY3d 196, 200 [2015]). We conclude that"the record shows no retaliation or vindictiveness against the defendant for electing to proceed totrial" (People v Shaw, 124 AD2d 686, 686 [2d Dept 1986], lv denied 69 NY2d750 [1987]; see People v Brown, 67AD3d 1427, 1427-1428 [4th Dept 2009], lv denied 14 NY3d 839 [2010]). Weconclude, however, that the sentence is unduly harsh and severe under the circumstances (seeCPL 470.15 [6] [b]), and we therefore modify the judgment in appeal No. 1 as a matter ofdiscretion in the interest of justice by directing that the sentences imposed shall runconcurrently.
Defendant failed to preserve for our review his challenge to the court's suppression ruling inappeal No. 2 inasmuch as he failed to "[make] his position with respect to the [challenged] ruling. . . known to the court" (CPL 470.05 [2]; see generally People v Martin, 50NY2d 1029, 1031 [1980]). We decline to exercise our power to review defendant's contention asa matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
We have reviewed defendant's contentions in appeal Nos. 1 and 2 in his pro se supplementalbriefs and conclude that none requires reversal or further modification. Present—Whalen,P.J., Lindley, DeJoseph, Curran and Troutman, JJ.