Opinion
April 11, 1996
Appeal from the Supreme Court, New York County (Marcy Kahn J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see, People v. Corporan, 169 A.D.2d 643, lv denied 77 N.Y.2d 959), which showed that defendant was the real estate broker for the owner of the subject apartment and that by making material misrepresentations both to the owner and a potential buyer, he deprived the latter, who relied upon his false statements, of her property and enriched himself at her expense. Nor was defendant deprived of due process when the trial court, in imposing sentence, took into account two prior bad acts by defendant, it being proper to consider a defendant's background, including crimes for which he or she was never tried or convicted ( People v. Cunningham, 153 A.D.2d 700, lv denied 74 N.Y.2d 895; People v. Khan, 146 A.D.2d 806, 807, lv denied 73 N.Y.2d 1021). The standard for determining whether a sentencing has been fairly conducted "is whether the defendant has been afforded an opportunity to refute those aggravating factors which may have negatively influenced the court" ( People v. Perry, 36 N.Y.2d 114, 119), clearly the case here. We have considered defendant's remaining arguments and find them to be without merit.
Concur — Milonas, J.P., Wallach, Kupferman, Ross and Williams, JJ.