People v Dorn

People v Dorn 2010 NY Slip Op 02352 [71 AD3d 1523] March 19, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

The People of the State of New York, Respondent, v Dorene K. Dorn, Appellant.

—[*1] Frank Policelli, Utica, for defendant-appellant.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.

Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered May 11, 2009. The judgment convicted defendant, upon a jury verdict, of grand larceny in the second degree and conspiracy in the fourth degree.

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

Memorandum: On appeal from a judgment convicting her following a jury trial of grand larceny in the second degree (Penal Law § 155.40 [1]) and conspiracy in the fourth degree (§ 105.10 [1]), defendant contends that County Court violated her constitutional right to present a defense when it precluded her from introducing letters and statements from the deceased victim (see generally Chambers v Mississippi, 410 US 284 [1973]). Contrary to the contention of defendant, that constitutional challenge must be preserved for our review, and she failed to do so (see People v Gonzalez, 54 NY2d 729, 730 [1981]; People v Simmons, 283 AD2d 306 [2001], lv denied 96 NY2d 924 [2001]). After each of the prosecutor's objections concerning those letters and statements, defense counsel proceeded with his direct examination of defendant, "never calling to the . . . court's attention the purpose of the [evidence] . . . or in any way attempting to call the court's attention to the nature of the alleged error" (People v George, 67 NY2d 817, 819 [1986]; see People v Crawford-Brown, 270 AD2d 825 [2000], lv denied 95 NY2d 795 [2000]; see also People v Rivera, 281 AD2d 155 [2001], lv denied 96 NY2d 833 [2001]). In any event, defendant's contention involves facts outside the record on appeal and must therefore be raised by way of a CPL article 440 motion (see generally People v Exum, 66 AD3d 1336 [2009]; People v Lando, 61 AD3d 1389 [2009], lv denied 13 NY3d 746 [2009]).

Defendant also failed to preserve for our review her contention that the court "improperly penalized [her] for exercising [her] right to a jury trial [because she] did not raise the issue at the time of sentencing" (People v Tannis, 36 AD3d 635 [2007], lv denied 8 NY3d 927 [2007]; see People v Griffin, 48 AD3d 1233, 1236-1237 [2008], lv denied 10 NY3d 840 [2008]). 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 punished for asserting [her] right to trial' " (People v Chappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]; see People v Murphy, 68 AD3d 1730 [2009]), and "the record shows no retaliation or vindictiveness against the defendant for electing to proceed to trial" (People v Shaw, 124 AD2d 686, 686 [1986], lv denied 69 NY2d 750 [1987]; see People v Brown, 67 AD3d 1427 [2009]; People v Slater, 61 AD3d 1328, 1329 [2009], lv denied 13 NY3d 749 [2009]). Although defendant received a greater sentence than her coconspirator, we conclude that the [*2]disparity is justified under the circumstances of this case and that the sentence is not unduly harsh or severe. Present—Smith, J.P., Centra, Lindley, Sconiers and Pine, JJ.