Opinion
02-11-2016
The PEOPLE of the State of New York, Respondent, v. Barbara J. GARNER, Defendant–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), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Linda M. Campbell of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, and DeJOSEPH, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting her following a jury trial of assault in the first degree (Penal Law § 120.10[1] ). By failing to renew her motion for a trial order of dismissal after presenting evidence, defendant failed to preserve for our review her challenge to the legal sufficiency of the evidence with respect to the element of serious physical injury (see generally People v. Brown, 120 A.D.3d 1545, 1546, 992 N.Y.S.2d 591, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 ). In any event, that contention is without merit. The testimony of the People's medical expert that, if left untreated, the victim's pneumothorax created a significant risk of death is legally sufficient to establish the element of serious physical injury (see People v. Barbuto, 126 A.D.3d 1501, 1502, 6 N.Y.S.3d 369, lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 ; People v. Guillen, 65 A.D.3d 977, 977, 886 N.Y.S.2d 373, lv. denied 13 N.Y.3d 939, 895 N.Y.S.2d 329, 922 N.E.2d 918 ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review her contention that she was denied a fair trial based on prosecutorial misconduct (see CPL 470.05[2] ), and 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[6][a] ). Defendant likewise failed to preserve for our review her contention that County Court, in determining the sentence to be imposed, penalized her for exercising her right to a jury trial (see People v. Stubinger, 87 A.D.3d 1316, 1317, 929 N.Y.S.2d 813, lv. denied 18 N.Y.3d 862, 938 N.Y.S.2d 869, 962 N.E.2d 294 ; People v. Brink, 78 A.D.3d 1483, 1485, 910 N.Y.S.2d 606, lv. denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048, reconsideration denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 ). In any event, that contention is without merit. "[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 [her] right to trial ..., and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial" (Brink, 78 A.D.3d at 1485, 910 N.Y.S.2d 606 [internal quotation marks omitted] ). "In addition, ‘[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] was improperly punished for going to trial’ " (People v. Smith, 90 A.D.3d 1565, 1567, 935 N.Y.S.2d 775, lv. denied 18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 ). Defendant's sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.