PEOPLE v. TANNIS (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 17, 2004, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his contention regarding the preliminary instructions given to the jury (see CPL 270.40;  310.10 [2] ).   In any event, the contention is without merit (see People v. Fleming, 270 A.D.2d 498, 706 N.Y.S.2d 340).

 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, since he did not raise the issue at the time of sentencing (see People v. Hargroves, 27 A.D.3d 765, 815 N.Y.S.2d 605, lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 819, 854 N.E.2d 1283;  People v. Best, 295 A.D.2d 441, 743 N.Y.S.2d 313).   In any event, the defendant's contention is without merit.   The record discloses no vindictiveness on the part of the Supreme Court in arriving at the sentence, and the fact that the sentence imposed after trial was greater than that offered during plea negotiations is no indication that the defendant was punished for asserting his right to proceed to trial (see People v. Bellilli, 270 A.D.2d 355, 704 N.Y.S.2d 616).   The sentence imposed was not otherwise excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).