PEOPLE v. URRUTIA

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Juan URRUTIA, Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., WISNER, KEHOE, LAWTON, AND HAYES, JJ. James S. Hinman, P.C., Rochester (James S. Hinman of Counsel), for Defendant-Appellant. Howard R. Relin, District Attorney, Rochester (Wendy Evans Lehmann of Counsel), for Plaintiff-Respondent.

 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 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   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 N.Y.2d 1015, 1017-1018, 499 N.Y.S.2d 388, 489 N.E.2d 1290, rearg. denied 67 N.Y.2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234;  People v. Early, 261 A.D.2d 967, 689 N.Y.S.2d 907).

 We reject the further contention of defendant that the sentence of an indeterminate term of imprisonment of 12 1/212 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 N.Y.2d 400, 412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  see Matter of Kelly v. Safir, 96 N.Y.2d 32, 40, 724 N.Y.S.2d 680, 747 N.E.2d 1280, rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773).   Here, contrary to defendant's contention, there is no indication that the sentence imposed was “the product of vindictiveness” (People v. Thompson, 299 A.D.2d 889, 890, 749 N.Y.S.2d 756, lv. denied 99 N.Y.2d 585, 755 N.Y.S.2d 721, 785 N.E.2d 743).

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

MEMORANDUM: