        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

617
KA 11-02461
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THEODORE PRICE, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered September 1, 2011. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of burglary in the second degree (Penal Law
§ 140.25 [2]). Defendant failed to preserve for our review his
contention that he was deprived of a fair trial by judicial misconduct
(see People v Brown, 120 AD3d 1545, 1545-1546, lv denied 24 NY3d
1082), and we decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]).

      Defendant contends that he was denied effective assistance of
counsel at sentencing because defense counsel withdrew a challenge to
defendant’s adjudication as a persistent felony offender. We reject
that contention inasmuch as the challenge would have had “ ‘little or
no chance of success’ ” (People v Caban, 5 NY3d 143, 152, quoting
People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702). Contrary
to defendant’s further contention that defense counsel was ineffective
for failing to argue against the imposition of the maximum sentence,
we conclude that, “given the nature of defendant’s criminal record and
the criminal conduct herein, . . . no statement made by defense
counsel at sentencing ‘would have had an impact on the sentence
imposed’ ” (People v Saladeen, 12 AD3d 1179, 1180, lv denied 4 NY3d
767).

     Defendant “failed to preserve for our review his . . . contention
                                 -2-                           617
                                                         KA 11-02461

that the sentence imposed was a vindictive punishment for rejecting
the plea offer and proceeding to trial” (People v Brown, 111 AD3d
1385, 1387, lv denied 22 NY3d 1155; see People v Hurley, 75 NY2d 887,
888). In any event, that contention is without merit. “[T]he 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 [or her] right to trial” (People v Spencer,
108 AD3d 1081, 1083, lv denied 22 NY3d 1159 [internal quotation marks
omitted]). Finally, we reject defendant’s contention that his
sentence is unduly harsh and severe.




Entered:   June 12, 2015                       Frances E. Cafarell
                                               Clerk of the Court
