People v Jenkins

People v Jenkins 2017 NY Slip Op 06190 Decided on August 16, 2017 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 16, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2014-09784
(Ind. No. 231/12)

[*1]The People of the State of New York, 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.

DECISION & ORDER

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 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Cahill, 2 NY3d 14, 57; People v Bleakley, 69 NY2d 490, 495). Moreover, upon our independent review of the record (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348-349), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

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 AD3d 538, 542; People v Cole, 140 AD3d 1183; People v Brown, 38 AD3d 676). 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 AD3d 902; People v Silburn, 145 AD3d 799, lv granted 29 NY3d 952; People v Bowers, 144 AD3d 1049). Furthermore, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

LEVENTHAL, J.P., HALL, HINDS-RADIX and MALTESE, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court