Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Ismail MOHAMED, Defendant-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.
Appeal from a Judgment of the Oneida County Court (Robert Bauer, J.), rendered December 6, 2019. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree (two counts) and grand larceny in the fourth degree.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT. PRESENT: WHALEN, P.J., CURRAN, OGDEN, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of robbery in the second degree (Penal Law § 160.10 [1], [3]) and one count of grand larceny in the fourth degree (§. 155.30 [8]).
To the extent that defendant preserved for our review his contention that the conviction is not supported by legally sufficient evidence (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]), that contention lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Further, viewing the evidence in light of the elements of the crimes 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 [2007]), we reject defendant’s contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
[1] Inasmuch as defense counsel consented to the annotations on the verdict sheet by stating after his review of the verdict sheet that it was "fine," defendant waived his contention that the verdict sheet was improperly annotated (see People v. Liggins, 195 A.D.3d 1464, 1466, 145 N.Y.S.3d 487 [4th Dept. 2021], lv denied 38 N.Y.3d 928, 164 N.Y.S.3d 32, 184 N.E.3d 853 [2022]).
We reject defendant’s contention that he received ineffective assistance of counsel (see People v. Baker, 58 A.D.3d 1069, 1072, 872 N.Y.S.2d 229 [3d Dept. 2009], affd 14 N.Y.3d 266, 899 N.Y.S.2d 733, 926 N.E.2d 240 [2010]; People v. Collins, 167 A.D.3d 1493, 1497-1498, 90 N.Y.S.3d 759 [4th Dept. 2018], lv denied 32 N.Y.3d 1202, 99 N.Y.S.3d 191, 122 N.E.3d 1104 [2019]; People v. Person, 153 A.D.3d 1561, 1563-1564, 62 N.Y.S.3d 231[4th Dept. 2017], lv denied 30 N.Y.3d 1118, 77 N.Y.S.3d 343, 101 N.E.3d 984 [2018]; see also People v. Conley, 192 A.D.3d 1616, 1620-1621, 144, N.Y.S.3d 508 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 417, 175 N.E.3d 442 [2021]; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).
[2, 3] Defendant failed to preserve for our review his contention that, in sentencing him, County Court penalized him for exercising his right to a trial (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017, [1990]; People v. Brittan, 213 A.D.3d 1326, 1328, 183 N.Y.S.3d 673 [4th Dept. 2023], lv denied 39 N.Y.3d 1140, 188 N.Y.S.3d 447, 209 N.E.3d 1275 [2023]). In any event, that contention lacks 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 being punished for asserting [his] right to trial," and there is no indication in the record before us that the court acted in a vindictive manner based on defendant’s exercise of the right to a trial (People v. Gamer, 136 A.D.3d 1374, 1374, 25 N.Y.S.3d 758 [4th Dept. 2016], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] [internal quotation marks omitted]; see People v. Moses, 197 A.D.3d 951, 954-955, 153 N.Y.S.3d 373 [4th Dept. 2021], lv denied 37 N.Y.3d 1097, 156 N.Y.S.3d 796, 178 N.E.3d 443 [2021], reconsideration denied 37 N.Y.3d 1163, 160 N.Y.S.3d 706, 181 N.E.3d 1134 [2022]; People v. Urrutia, 2 A.D.3d 1475, 1476, 770 N.Y.S.2d 526 [4th Dept. 2003], lv denied 2 N.Y.3d 765, 778 N.Y.S.2d 784, 811 N.E.2d 46 [2004]). Finally, defendant’s sentence is not unduly harsh or severe.