People v. CruzPeople v. Cruz
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, the hearing court properly denied suppression of statements he made after his arrest. The totality of the circumstances establishes that the statements were voluntarily made after the defendant knowingly and voluntarily waived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]; People v Shears, 40 AD3d 661, 662 [2007]; People v Morales, 228 AD2d 525 [1996]; People v Cureton, 139 AD2d 756 [1988]).
The defendant’s contention that there was no probable cause for his warrantless arrest because the People failed to satisfy the two-pronged Aguilar-Spinelli test (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]) is unpreserved for appellate review, since the defendant failed to raise this specific argument in support of suppression before the hearing court (see
Since there was probable cause to arrest the defendant, the defendant was properly charged with escape in the third degree and resisting arrest (
The defendant’s contention that the prosecution failed to establish his guilt of burglary in the first degree, robbery in the second degree, and assault in the second degree beyond a reasonable doubt because the complainants did not sustain a “physical injury” within the meaning of
The defendant’s contention that the People failed to present legally sufficient evidence that property was stolen with respect to his convictions of robbery in the first degree and robbery in the second degree under counts one, two, four, five, seven, eight, ten, and eleven of the indictment is unpreserved for appellate review (see
Based upon the record before us, the defendant received the effective assistance of counsel (see Strickland v Washington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137, 146-147 [1981]).
The defendant’s contention that the sentencing court penalized him for exercising his right to a jury trial is unpreserved for appellate review since he did not set forth this issue on the record at the time of sentencing (see People v Hurley, 75 NY2d 887 [1990]; People v Martinez, 55 AD3d 753, 754 [2008]). In any event, the defendant’s contention is without merit. The fact that the sentence imposed after trial was greater than that offered during plea negotiations is not, standing alone, an indication that the defendant was punished for asserting his right to proceed to trial (see People v Valery, 135 AD3d 975 [2016]). There is no indication in the record that the sentence was the result of vindictiveness or retribution for the defendant’s refusal to accept a plea and his exercise of the right to a jury trial (see id.; People v Garcia, 46 AD3d 573 [2007]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Finally, that two of the defendant’s codefendants received lesser sentences than the defendant does not render the defendant’s sentence excessive under the circumstances of this case (see People v Bryant, 82 AD3d 1114 [2011]; People v Scott, 55 AD2d 963 [1977]).
The defendant’s remaining contentions are without merit.
Rivera, J.P., Balkin, Cohen and Barros, JJ., concur.