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

49
KA 12-00045
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BARBARA J. GARNER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered July 1, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
following a jury trial of assault in the first degree (Penal Law §
120.10 [1]). By failing to renew her motion for a trial order of
dismissal after presenting evidence, defendant failed to preserve for
our review her challenge to the legal sufficiency of the evidence with
respect to the element of serious physical injury (see generally
People v Brown, 120 AD3d 1545, 1546, lv denied 24 NY3d 1082). In any
event, that contention is without merit. The testimony of the
People’s medical expert that, if left untreated, the victim’s
pneumothorax created a significant risk of death is legally sufficient
to establish the element of serious physical injury (see People v
Barbuto, 126 AD3d 1501, 1502, lv denied 25 NY3d 1159; People v
Guillen, 65 AD3d 977, 977, lv denied 13 NY3d 939). Viewing the
evidence in light of the elements of the crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we further conclude that
the verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to preserve for our review her contention that
she was denied a fair trial based on prosecutorial misconduct (see CPL
470.05 [2]), and we decline to exercise our power to review
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Defendant likewise failed to
preserve for our review her contention that County Court, in
determining the sentence to be imposed, penalized her for exercising
                                 -2-                            49
                                                         KA 12-00045

her right to a jury trial (see People v Stubinger, 87 AD3d 1316, 1317,
lv denied 18 NY3d 862; People v Brink, 78 AD3d 1483, 1485, lv denied
16 NY3d 742, reconsideration denied 16 NY3d 828). 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
[her] 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” (Brink, 78 AD3d at
1485 [internal quotation marks omitted]). “In addition, ‘[t]he fact
that defendant’s sentence was greater than that of [her] codefendant[,
who accepted a plea agreement,] does not substantiate [her contention]
that [she] was improperly punished for going to trial’ ” (People v
Smith, 90 AD3d 1565, 1567, lv denied 18 NY3d 998). Defendant’s
sentence is not unduly harsh or severe.




Entered:   February 11, 2016                   Frances E. Cafarell
                                               Clerk of the Court
