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.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 28, 2010
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
On appeal from a judgment convicting her following a jury trial of grand larceny in the second degree (Penal Law § 155.40 ) and conspiracy in the fourth degree (§ 105.10 ), 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 ). 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 ; People v Simmons, 283 AD2d 306 , lv denied 96 NY2d 924 ). 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 ; see People v Crawford-Brown, 270 AD2d 825 , lv denied 95 NY2d 795 ; see also People v Rivera, 281 AD2d 155 , lv denied 96 NY2d 833 ). 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 ; People v Lando, 61 AD3d 1389 , lv denied 13 NY3d 746 ).
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 , lv denied 8 NY3d 927 ; see People v Griffin, 48 AD3d 1233, 1236-1237 , lv denied 10 NY3d 840 ). 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 , lv denied 5 NY3d 786 ; see People v Murphy, 68 AD3d 1730 ), and "the record shows no retaliation or vindictiveness against the defendant for electing to proceed to trial" (People v Shaw, 124 AD2d 686, 686 , lv denied 69 NY2d 750 ; see People v Brown, 67 AD3d 1427 ; People v Slater, 61 AD3d 1328, 1329 , lv denied 13 NY3d 749 ). Although defendant received a greater sentence than her coconspirator, we conclude that the 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.
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