People v. SimmonsPeople v. Simmons
Appeal by the defendant from a judgment of the County Court, Nassau County (Cotter, J.), rendered July 20, 2004, convicting him of burglary in the first degree, upon a jury verdict, and sentencing him to a determinate term of 25 years’ imprisonment. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and to suppress identification testimony.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reducing the sentence to a determinate term of 15 years’ imprisonment; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the sentence imposed by the County Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v v. Hurley, 75 NY2d 887 [1990]; People v. Robinson, 287 AD2d 582, 582-583 [2001]). However, we reach the issue in the interest of justice (see People v. Clark, 6 AD3d 1066 [2004]; see also People v. Martin, 4 AD3d 537 [2004]).
The defendant, who has no prior felony convictions and no history of violent crime, was offered a sentence of a determinate term of 8 years’ imprisonment as part of a plea bargain. His more culpable codefendant pleaded guilty to robbery in the first degree and burglary in the first degree, and was sentenced to a determinate term of 15 years’ imprisonment. Under the circumstances, the sentence of 25 years’ imprisonment raises the inference that the defendant was penalized for exercising his right to a jury trial (see People v. Morton, 288 AD2d 557 [2001], cert denied 537 US 860 [2002]; People v. Cosme, 203 AD2d 375 [1994]; People v. Peterson, 126 AD2d 680 [1987]; People v. Patterson, 106 AD2d 520 [1984]). Accordingly, the defendant’s sentence should be reduced to a determinate term of 15 years’ imprisonment.
The defendant was not denied his right to effective assistance of counsel (see People v. Benevento, 91 NY2d 708 [1998]).
The defendant’s remaining contentions, that the police lacked probable cause for his arrest and that the showup identifications were unduly suggestive, are without merit.