Opinion
480 KA 15–00913
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Desmond WASHINGTON, Defendant–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), FOR RESPONDENT.
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), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
In appeal No. 1, defendant appeals from a judgment convicting him following a nonjury trial of two counts of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon 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 to the credibility of the People's witnesses is unpreserved for our review because defendant did not raise that ground in support of his motion for a trial order of dismissal (see People v. Beard, 100 A.D.3d 1508, 1509, 953 N.Y.S.2d 805 [4th Dept. 2012] ). Viewing the evidence in light of the elements of the crime in the nonjury trial in appeal No. 1 (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence based on his challenge to the credibility of two of the People's witnesses (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [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 A.D.3d 1456, 1457, 885 N.Y.S.2d 829 [4th Dept 2009], lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [2010] [internal quotation marks omitted]; see People v. Smith, 145 A.D.3d 1628, 1629, 44 N.Y.S.3d 658 [4th Dept. 2016] ). "Testimony will be deemed incredible as a matter of law only where it is ‘manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ " ( People v. Smith, 73 A.D.3d 1469, 1470, 900 N.Y.S.2d 802 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [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 two consecutive 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 greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to [a] trial’ " ( People v. Chappelle, 14 A.D.3d 728, 729, 787 N.Y.S.2d 501 [3d Dept. 2005], lv denied 5 N.Y.3d 786, 801 N.Y.S.2d 807, 835 N.E.2d 667 [2005] ; see People v. Murphy, 68 A.D.3d 1730, 1731, 890 N.Y.S.2d 871 [4th Dept. 2009], lv denied 14 N.Y.3d 843, 901 N.Y.S.2d 149, 927 N.E.2d 570 [2010] ). Indeed, " ‘[g]iven that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea’ " ( People v. Martinez, 26 N.Y.3d 196, 200, 21 N.Y.S.3d 196, 42 N.E.3d 693 [2015] ). We conclude that "the record shows no retaliation or vindictiveness against the defendant for electing to proceed to trial" ( People v. Shaw, 124 A.D.2d 686, 686, 507 N.Y.S.2d 918 [2d Dept. 1986], lv denied 69 N.Y.2d 750, 512 N.Y.S.2d 1054, 505 N.E.2d 253 [1987] ; see People v. Brown, 67 A.D.3d 1427, 1427–1428, 890 N.Y.S.2d 741 [4th Dept. 2009], lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 145, 927 N.E.2d 566 [2010] ). We conclude, however, that the sentence is unduly harsh and severe under the circumstances (see CPL 470.15[6][b] ), and we therefore modify the judgment in appeal No. 1 as a matter of discretion in the interest of justice by directing that the sentences imposed shall run concurrently.
Defendant failed to preserve for our review his challenge to the court's suppression ruling in appeal 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, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363 [1980] ). We decline to exercise our power to review defendant's contention as a 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 supplemental briefs and conclude that none requires reversal or further modification.
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences imposed shall run concurrently and as modified the judgment is affirmed.