People v Juan Urrutia

People v Urrutia 2003 NY Slip Op 20297 [2 AD3d 1475] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Juan Urrutia, Appellant.

—Appeal from a judgment of Monroe County Court (Smith, J.), entered September 3, 1997, convicting defendant after a jury trial of sodomy in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of sodomy in the first degree (Penal Law § 130.50 [3]). Contrary to defendant's contention, the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). In assessing the weight of the evidence, "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" (id.), and there is no reason to disturb those credibility determinations herein (see People v Shedrick, 66 NY2d 1015, 1017-1018 [1985], rearg denied 67 NY2d 758 [1986]; People v Early, 261 AD2d 967 [1999]).

We reject the further contention of defendant that the sentence of an indeterminate term of imprisonment of 12½ to 25 years is unduly harsh and severe. In addition, defendant contends that he was "punished" for exercising his right to a trial inasmuch as the sentence imposed was more severe than the sentence in the plea offer that he rejected. "Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater . . ., it is . . . to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea" (People v Pena, 50 NY2d 400, 412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087 [1981]; see Matter of Kelly v Safir, 96 NY2d 32, 40 [2001], rearg denied 96 NY2d 854 [2001]). Here, contrary to defendant's contention, there is no indication that the sentence imposed was "the product of vindictiveness" (People v Thompson, 299 AD2d 889, 890 [2002], lv denied 99 NY2d 585 [2003]). Present—Pigott, Jr., P.J., Wisner, Kehoe, Lawton and Hayes, JJ.