People v. Stephens, Appeal No. 1

Appeal No. 1 | N.Y. App. Div. | Sep 29, 1995

Judgment unanimously affirmed. Memorandum: There is no merit to the contention of defendant that County Court erred in denying his motion for new counsel without making further inquiry regarding the reasons for the motion (see, People v Rancka, 193 AD2d 1123, 1124, lv denied 82 NY2d 725; People v Kirkland, 177 AD2d 946, 946-947, lv denied 79 NY2d 859; see generally, People v Sides, 75 NY2d 822, 824).

The court properly denied discovery of documents and notes that formed the basis of the laboratory report concluding that the substance sold by defendant to the undercover officer was cocaine. Those documents and notes were not discoverable under article. 240. Rather, they constitute Rosario material and were properly made available to defendant at trial (see, People v Christopher, 101 AD2d 504, 525, revd on other grounds 65 NY2d 417; see also, People v Strong, 60 AD2d 792).

Defendant failed to preserve for our review his contention that the read-back of testimony of certain defense witnesses requested by the jury during deliberations "was not in compliance with CPL 310.30, written jury procedure” (see, People v Goldbeck, 218 AD2d 670), 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]).

Lastly, we conclude that the sentence imposed is neither unduly harsh nor severe. "The mere fact that defendant was ultimately sentenced to a term of incarceration greater than that offered as a part of the plea bargain does not render his sentence harsh or excessive” (People v Bradley [appeal No. 1], 184 AD2d 1041, lv denied 80 NY2d 927). Moreover, "the mere fact that other cases, decided under differing factual circumstances, reveal a lesser sentence for the same crime does not warrant disturbing the trial court’s exercise of discretion” (People v Quezada, 145 AD2d 950, 951; see also, People v Hoppe, 47 AD2d 571). (Appeal from Judgment of Ontario County Court, Harvey, J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Lawton, J. P., Fallon, Callahan, David and Boehm, JJ.