Opinion
May 31, 1996
Appeal from the Ontario County Court, Henry, Jr., J.
Present — Denman, P.J., Pine, Fallon, Wesley and Balio, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him, following a jury trial, of three counts each of forgery in the second degree and petit larceny, defendant contends that the prosecutor, by characterizing the People's proof as uncontradicted, improperly commented upon defendant's failure to testify. Defendant's contention is not preserved for our review ( see, CPL 470.05; People v. Staples, 212 A.D.2d 1052). In any event, the remark was "not of such character as would naturally and reasonably be interpreted by the jury as adverse comment on defendant's failure to take the stand" ( People v. Burke, 72 N.Y.2d 833, 836, rearg denied 72 N.Y.2d 953; see also, People v. Staples, supra). Moreover, upon defendant's request, County Court instructed the jury that no inference could be drawn from defendant's failure to testify.
Defendant further contends that he was prejudiced by having to wear a leg restraint during trial. While the court should have articulated on the record its reasons for requiring the leg restraint ( see, People v. Rouse, 79 N.Y.2d 934, 935; People v Sykes, 224 A.D.2d 986), the record establishes that the leg restraint was concealed by defendant's sweat pants and thus was not visible to the jury ( cf., People v. Houk, 222 A.D.2d 1074; People v. Nelson, 221 A.D.2d 945).
Defendant's contention that the court's charge concerning the jury's determination of the facts improperly diminished the People's burden of proof has not been preserved for our review ( see, People v. Autry, 75 N.Y.2d 836; People v. Galloway, 193 A.D.2d 1097, lv denied 82 N.Y.2d 754). Were we to reach the merits of that contention, we would conclude that the charge as a whole conveyed the proper burden of proof to the jury ( see, People v Clark, 190 A.D.2d 989, lv denied 81 N.Y.2d 968).
Defendant's sentence was neither unduly harsh nor severe. "`The mere fact that defendant was ultimately sentenced to a term of incarceration greater than that offered as a part of the plea bargain does not render his sentence harsh or excessive'" (People v. Stephens, 219 A.D.2d 854, lv denied 87 N.Y.2d 851, quoting People v. Bradley [appeal No. 1], 184 A.D.2d 1041, lv denied 80 N.Y.2d 927). We note that defendant committed additional crimes between the time of the plea offer and the time of sentencing.