PEOPLE v. MARTINEZ

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The PEOPLE of the State of New York, Respondent, v. Brandon M. MARTINEZ, Appellant.

Decided: November 17, 2016

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ. Lisa A. Burgess, Indian Lake, for appellant. Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for respondent.

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered October 16, 2014, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).

Defendant was charged with criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts) after he sold crack cocaine to a confidential informant on two occasions. After he rejected a plea offer and proceeded to a jury trial, he was found guilty as charged. County Court thereafter sentenced defendant to an aggregate prison term of 12 years, followed by two years of postrelease supervision. Defendant now appeals.

We affirm. Defendant's sole argument on appeal—that the imposed sentence was in retaliation for exercising his constitutional right to a jury trial—may well be unpreserved for our review given the arguable failure of defendant or his counsel to raise the issue at sentencing (see People v. Hurley, 75 N.Y.2d 887, 888 [1990]; People v. Haskins, 121 A.D.3d 1181, 1185 [2014], lv denied 24 N.Y.3d 1120 [2015]; People v. Gallup, 302 A.D.2d 681, 685 [2003], lv denied 100 N.Y.2d 594 [2003] ). In any event, the fact that the imposed sentence was longer than the one offered defendant during the plea negotiations “ ‘is not proof that defendant was penalized for exercising his right to a jury trial’ “ (People v. Young, 86 A.D.3d 796, 800 [2011], lv denied 17 A.D.3d 905 [2011], quoting People v. Robinson, 72 A.D.3d 1277, 1278 [2010], lv denied 15 N.Y.3d 809 [2010]; see People v. McCray, 96 A.D.3d 1160, 1161 [2012], lv denied 19 N.Y.3d 1104 [2012] ). While defendant was considering a plea offer tendered by the People, County Court advised defendant of his potential sentencing exposure should he be convicted as charged following a jury trial. The court further stressed that it had no interest in penalizing defendant for proceeding to trial, but advised him that the light sentence offer reflected his willingness to enter a guilty plea to a reduced charge that would have protected a confidential informant whose identity had not yet been disclosed. Defendant nevertheless rebuffed that and all other efforts to resolve the charges and proceeded to a trial where the informant testified, and the extent of defendant's involvement in the drug trade was made apparent. “[T]he quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater,” and the record before us reveals no evidence of retaliation or vindictiveness on the part of County Court stemming from defendant's refusal to accept a plea bargain (People v. Pena, 50 N.Y.2d 400, 412 [1980], cert denied 449 U.S. 1087 [1981]; see People v. Martinez, 26 N.Y.3d 196, 200 [2015]; People v. Molina, 73 A.D.3d 1292, 1293 [2010], lv denied 15 N.Y.3d 807 [2010]; People v. Pepper, 89 A.D.2d 714, 718 [1982], affd 59 N.Y.2d 353 [1983] ).

ORDERED that the judgment is affirmed.

DEVINE, J.

McCARTHY, J.P., GARRY, LYNCH and CLARK, JJ., concur.