People v. Montgomery

The claim by the defendant that the indictment was improperly amended during trial is not preserved for our review since he argued only that the evidence did not warrant the amendment, not that the amendment was otherwise impermissible.

The defendant contends that the sentencing court improperly considered a robbery count for which he had been indicted but not convicted, and that his sentence should therefore be vacated. We disagree. Rather, the court expressly predicated its determination upon consideration of the petit larceny count of which the defendant had been convicted and on the defendant’s prior criminal record. The court also noted that it was not inclined to impose a sentence concurrent to those the defendant was presently serving inasmuch as such a sentence would be tantamount to an acquittal. Since we find the sentence to be both validly imposed and appropriate to the crime of which the defendant was convicted, we decline to substitute our discretion for that of the sentencing court.

The remainder of the defendant’s contentions are unpreserved for our review. Lazer, J. P., Niehoff, Lawrence and Kooper, JJ., concur.