Opinion
2017–06783 Ind. No. 13/16
08-19-2020
The PEOPLE, etc., Respondent, v. Brian R. MORGAN, Appellant.
Arza R. Feldman, Uniondale, NY, for appellant, and appellant pro se. Robert V. Tendy, Carmel, N.Y. (David M. Bishop of counsel), for respondent.
Arza R. Feldman, Uniondale, NY, for appellant, and appellant pro se.
Robert V. Tendy, Carmel, N.Y. (David M. Bishop of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Putnam County (James T. Rooney, J.), rendered May 31, 2017, convicting him of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the sentence imposed upon his conviction of driving while intoxicated constituted "cruel and unusual" punishment is unpreserved for appellate review (see People v. Pena, 28 N.Y.3d 727, 730, 49 N.Y.S.3d 342, 71 N.E.3d 930 ; People v. Hassan, 172 A.D.3d 744, 745, 97 N.Y.S.3d 494 ) and, in any event, without merit (see People v. Miller, 74 A.D.3d 1097, 903 N.Y.S.2d 131 ). Furthermore, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contention that he was penalized at sentencing for going to trial rather than accepting a plea offer is without merit. The record demonstrates that the sentencing court relied upon the appropriate factors in sentencing the defendant (see People v. Pena, 50 N.Y.2d 400, 411–412, 429 N.Y.S.2d 410, 406 N.E.2d 1347 ; People v. Gillian, 28 A.D.3d 577, 578, 816 N.Y.S.2d 84 ). The defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is without merit. The defendant failed to demonstrate "the absence of strategic or other legitimate explanations" for counsel's actions ( People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; see People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; People v. Torres , 177 A.D.3d 579, 580, 113 N.Y.S.3d 707 ), and the record amply supports the conclusion that the defendant received meaningful representation (see People v. Benevento , 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.
MASTRO, J.P., HINDS–RADIX, MALTESE and IANNACCI, JJ., concur.