SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
630
KA 14-01744
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MARTIN O. POPE, DEFENDANT-APPELLANT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered May 22, 2014. The judgment convicted defendant,
upon a jury verdict, of criminal contempt in the first degree (two
counts) and criminal contempt in the second degree (three counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, two counts of criminal contempt
in the first degree (Penal Law § 215.51 [b] [iv]). Defendant “failed
to preserve for our review [his] contention that County Court, in
determining the sentence to be imposed, penalized [him] for exercising
[his] right to a jury trial” (People v Garner, 136 AD3d 1374, 1374, lv
denied ___ NY3d ___ [Apr. 18, 2016]; see People v Coapman, 90 AD3d
1681, 1683-1684, lv denied 18 NY3d 956). In any event, that
contention is without merit. “The mere fact that a sentence imposed
after trial is greater than that offered in connection with plea
negotiations is not proof that defendant was punished for asserting
[his] right to trial . . . , and there is no indication in the record
before us that the sentencing court acted in a vindictive manner based
on defendant’s exercise of the right to a trial” (Garner, 136 AD3d at
1374-1375 [internal quotation marks omitted]). Moreover, “[g]iven
that the quid pro quo of the bargaining process will almost
necessarily involve offers to moderate sentences that ordinarily would
be greater, it is also to be anticipated that sentences handed out
after trial may be more severe than those proposed in connection with
a plea” (People v Martinez, 26 NY3d 196, 200 [internal quotation marks
omitted]). Finally, the sentence is not unduly harsh or severe.
Entered: July 1, 2016 Frances E. Cafarell
Clerk of the Court