The People, etc., respondent, v. Javier Hernandez, appellant. (2011)

Submitted—September 30, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered May 12, 2008, convicting him of criminal sexual act in the first degree (two counts), attempted rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410, cert denied 542 U.S. 946;  People v. Bleakley, 69 N.Y.2d 490, 495).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

Contrary to the defendant's contention, the fact that the sentence imposed after trial was greater than that offered during plea negotiations does not establish that the County Court retaliated against him for exercising his right to trial (see People v. Pena, 50 N.Y.2d 400, 411–412, cert denied 449 U.S. 1087;  People v. Ramos, 74 AD3d 991, 992;  People v. Rodriguez, 73 AD3d 815, 816–817;  People v. Hargroves, 27 AD3d 765, 765–766).   In sentencing the defendant, the County Court properly considered his lack of remorse and his unwillingness to accept responsibility for the crimes (see People v. Cato, 5 AD3d 394;  People v. Barnes, 219 A.D.2d 527, 527–528).   Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

MASTRO, J.P., ANGIOLILLO, BELEN and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court