State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 107066 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

BRANDON M. MARTINEZ,

Appellant.

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Calendar Date: October 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Lisa A. Burgess, Indian Lake, for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown

(Michael P. Langey of counsel), for respondent.

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Devine, J.

Appeal from a judgment of the County Court of Essex County

(Meyer, J.), rendered October 16, 2014, upon a verdict convicting

defendant of the crimes of criminal sale of a controlled

substance in the third degree (two counts) and criminal

possession of a controlled substance in the third degree (two

counts).

Defendant was charged with criminal sale of a controlled

substance in the third degree (two counts) and criminal

possession of a controlled substance in the third degree (two

counts) after he sold crack cocaine to a confidential informant

on two occasions. After he rejected a plea offer and proceeded

to a jury trial, he was found guilty as charged. County Court

thereafter sentenced defendant to an aggregate prison term of 12
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years, followed by two years of postrelease supervision. 

Defendant now appeals.

We affirm. Defendant's sole argument on appeal – that the

imposed sentence was in retaliation for exercising his

constitutional right to a jury trial – may well be unpreserved

for our review given the arguable failure of defendant or his

counsel to raise the issue at sentencing (see People v Hurley, 75

NY2d 887, 888 [1990]; People v Haskins, 121 AD3d 1181, 1185

[2014], lv denied 24 NY3d 1120 [2015]; People v Gallup, 302 AD2d

681, 685 [2003], lv denied 100 NY2d 594 [2003]). In any event,

the fact that the imposed sentence was longer than the one

offered defendant during the plea negotiations "'is not proof

that defendant was penalized for exercising his right to a jury

trial'" (People v Young, 86 AD3d 796, 800 [2011], lv denied 17

AD3d 905 [2011], quoting People v Robinson, 72 AD3d 1277, 1278

[2010], lv denied 15 NY3d 809 [2010]; see People v McCray, 96

AD3d 1160, 1161 [2012], lv denied 19 NY3d 1104 [2012]). While

defendant was considering a plea offer tendered by the People,

County Court advised defendant of his potential sentencing

exposure should he be convicted as charged following a jury

trial. The court further stressed that it had no interest in

penalizing defendant for proceeding to trial, but advised him

that the light sentence offer reflected his willingness to enter

a guilty plea to a reduced charge that would have protected a

confidential informant whose identity had not yet been disclosed. 

Defendant nevertheless rebuffed that and all other efforts to

resolve the charges and proceeded to a trial where the informant

testified, and the extent of defendant's involvement in the drug

trade was made apparent. "[T]he quid pro quo of the bargaining

process will almost necessarily involve offers to moderate

sentences that ordinarily would be greater," and the record

before us reveals no evidence of retaliation or vindictiveness on

the part of County Court stemming from defendant's refusal to

accept a plea bargain (People v Pena, 50 NY2d 400, 412 [1980],

cert denied 449 US 1087 [1981]; see People v Martinez, 26 NY3d

196, 200 [2015]; People v Molina, 73 AD3d 1292, 1293 [2010], lv

denied 15 NY3d 807 [2010]; People v Pepper, 89 AD2d 714, 718

[1982], affd 59 NY2d 353 [1983]).
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McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court