Opinion
KA 03-00778.
November 19, 2004.
Appeal from a judgment of the Ontario County Court (James R. Harvey, J.), rendered March 12, 2003. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree (four counts) and criminal possession of a controlled substance in the seventh degree (four counts).
Before: Pigott, Jr., P.J., Pine, Scudder, Kehoe and Lawton, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, of four counts each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the seventh degree (§ 220.03). Defendant failed to preserve for our review her contention that the sentence imposed by County Court constituted a punishment for declining the plea offer and proceeding to trial ( see People v. Hurley, 75 NY2d 887). In any event, we conclude that the sentence imposed "was not the product of vindictiveness" ( People v. Thompson, 299 AD2d 889, 890, lv denied 99 NY2d 585). The evidence at trial establishes that defendant sold cocaine to a confidential informant on five occasions, and the presentence report establishes that defendant has an extensive criminal history. The further contention of defendant that she was denied effective assistance of counsel is without merit ( see People v. Baldi, 54 NY2d 137, 147).