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

580
KA 11-01833
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

RICHARD BECRAFT, JR., DEFENDANT-APPELLANT.


FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD BECRAFT, JR., DEFENDANT-APPELLANT PRO SE.

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 11, 2010. The judgment convicted defendant,
upon a jury verdict, of predatory sexual assault against a child (two
counts).

     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 two counts of predatory sexual assault against
a child (Penal Law § 130.96). Defendant contends that the disparity
between the plea offer and the sentence he received after trial
establishes that he was punished for asserting his right to a jury
trial. Defendant failed to preserve that contention for our review
(see People v Garner, 136 AD3d 1374, 1374; People v Coapman, 90 AD3d
1681, 1683-1684, lv denied 18 NY3d 956), and it is without merit in
any event. “ ‘Given 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). Furthermore, the plea offer here was to a class B violent
felony, and defendant was convicted of a class A-II felony. In
addition, “[d]efendant’s rejection of the plea offer . . . required
the victim to testify about the sexual abuse at trial, a factor . . .
recognized as a legitimate basis for the imposition of a more severe
sentence after trial than that which the defendant would have received
upon a plea of guilty” (id.). The imposition of the maximum sentence
was not an act of vindictiveness, but was a reflection of the heinous
nature of the crime, the enduring harm to the victim, and defendant’s
                                 -2-                           580
                                                         KA 11-01833

unwillingness to accept responsibility for the crime (see id.; People
v Lombardi, 68 AD3d 1765, 1765-1766, lv denied 14 NY3d 802). We
reject defendant’s further contention that the sentence is unduly
harsh and severe.

     Defendant contends in his pro se supplemental brief that County
Court erred in admitting a recorded telephone conversation between
defendant and the victim because the People failed to establish a
proper chain of custody of the recording. That contention is not
preserved for our review (see People v Gibson, 106 AD3d 834, 835;
People v Gales, 28 AD3d 1163, 1163, lv denied 7 NY3d 756) and, in any
event, it lacks merit. The People laid a proper foundation for the
admission of the recording through the testimony of both the victim
and the officer who conducted the controlled telephone call that the
recording accurately reflected the complete conversation between the
victim and defendant (see People v Ely, 68 NY2d 520, 527). Under
those circumstances, the People were not required to show a chain of
custody before seeking to admit the recording in evidence (see id. at
527-528; People v Dicks, 100 AD3d 528, 528). Defendant’s further
contention in his pro se supplemental brief that he was denied
effective assistance of counsel is based on matters outside the record
and therefore must be raised by a motion pursuant to CPL article 440
(see People v Cooper, 134 AD3d 1583, 1586; People v Washington, 122
AD3d 1406, 1406, lv denied 25 NY3d 1173). We have examined the
remaining contentions of defendant raised in his pro se supplemental
brief and conclude that none requires reversal or modification of the
judgment.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
