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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Emilio MORENO, Jr., Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  KEHOE, J.P., GORSKI, MARTOCHE, SMITH, AND PINE, JJ. John E. Tyo, Shortsville, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him following a bench trial of assault in the second degree (Penal Law § 120.05[2] ).   As we concluded on the appeal of defendant's brother and codefendant (People v. Moreno, 31 A.D.3d 1214, 817 N.Y.S.2d 846), County Court did not fail to give the evidence the weight it should be accorded in rejecting the justification defense, and thus the verdict is not against the weight of the evidence.  “The People disproved defendant's justification defense beyond a reasonable doubt by presenting evidence that the actions of defendant and his codefendant in repeatedly kicking the victim in the head and face were not justified by the victim's use or threatened use of physical force against them” (id. at 1214, 817 N.Y.S.2d 846).   Also contrary to the contention of defendant, the court did not err in sentencing him to a term of incarceration greater than that offered as part of the plea bargain.  “[T]here is no indication that the sentence imposed was the product of vindictiveness ․ or that the court placed undue weight upon defendant's ill-advised decision to reject [a] favorable plea bargain and proceed to trial” (People v. Smith, 21 A.D.3d 1277, 1278, 801 N.Y.S.2d 663 [internal quotation marks omitted];  see People v. White, 12 A.D.3d 1200, 785 N.Y.S.2d 262, lv. denied 4 N.Y.3d 768, 792 N.Y.S.2d 12, 825 N.E.2d 144;  People v. Lewis, 292 A.D.2d 814, 815, 740 N.Y.S.2d 165, lv. denied 98 N.Y.2d 677, 746 N.Y.S.2d 467, 774 N.E.2d 232).   The sentence is not unduly harsh or severe.

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