Opinion
08-16-2017
The PEOPLE, etc., respondent, v. Carl JENKINS, appellant.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered October 1, 2014, convicting him of burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Cahill, 2 N.Y.3d 14, 57, 777 N.Y.S.2d 332, 809 N.E.2d 561 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Moreover, upon our independent review of the record (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v. Busano, 141 A.D.3d 538, 542, 36 N.Y.S.3d 149 ; People v. Cole, 140 A.D.3d 1183, 33 N.Y.S.3d 466 ; People v. Brown, 38 A.D.3d 676, 831 N.Y.S.2d 510 ). In any event, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to trial (see People v. Mujica, 146 A.D.3d 902, 45 N.Y.S.3d 522 ; People v. Silburn, 145 A.D.3d 799, 43 N.Y.S.3d 461, lv. granted 29 N.Y.3d 952, 54 N.Y.S.3d 383, 76 N.E.3d 1086 ; People v. Bowers, 144 A.D.3d 1049, 42 N.Y.S.3d 243 ). Furthermore, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
LEVENTHAL, J.P., HALL, HINDS–RADIX and MALTESE, JJ., concur.