Summary
holding that defendant's sentencing claim was not preserved for review in the Court of Appeals because "defendant and his attorney made no protest or objection as the predicate felony offender sentence . . . was imposed."
Summary of this case from Rhagi v. ArtuzOpinion
Argued February 6, 1990
Decided March 22, 1990
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Robert M. Haft, J.
Joseph A. Zayas and Philip L. Weinstein for appellant.
Robert M. Morgenthau, District Attorney (Hildy B. Levine and Donald J. Siewert of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The sentence claim now advanced is unpreserved for our review (People v Ruz, 70 N.Y.2d 942, 943; People v Ingram, 67 N.Y.2d 897, 899). Defendant argues that the trial court's 2-to-4-year sentence improperly penalized him for exercising his right to a jury trial. At sentencing, he asserted that the People had earlier offered him a sentence of 1 1/3 to 4 years if he pleaded guilty and that he had been advised by his lawyer that he would receive the same sentence if he went to trial. The sentencing court clarified the record by noting that defendant had been offered a reduced sentence if he pleaded guilty or if he waived a jury and was convicted after a bench trial. The defendant and his attorney made no protest or objection as the 2-to-4-year predicate felony offender sentence was imposed, with the sentencing Judge adding this was not being done as a penalty but on all the usual sentencing factors.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed in a memorandum.