Opinion
No. KA 06-03802.
April 25, 2008.
Appeal from a judgment of the Seneca County Court (Dennis E Bender, J.), rendered December 18, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree.
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
RICHARD E. SWINEHART, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF COUNSEL), FOR RESPONDENT.
Present: Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and one count each of criminal possession of a controlled substance in the third degree (§ 220.16 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Contrary to the contention of defendant, the verdict is not against the weight of the evidence based on the jury's rejection of his agency defense ( see People v Rojas, 25 AD3d 325, lv denied 6 NY3d 837; People v Jackson, 11 AD3d 928, 929, lv denied 3 NY3d 757; see generally People v Bleakley, 69 NY2d 490, 495). Defendant failed to preserve for our review his further contention that County Court penalized him for exercising his right to a trial by imposing a greater sentence than that offered before trial ( see People v Hurley, 75 NY2d 887; People v Voymas, 39 AD3d 1182, 1184, lv denied 9 NY3d 852) and, in any event, that contention is without merit ( see People v Woods, 21 AD3d 1314, 1315, lv denied 6 NY3d 761; People v Urrutia, 2 AD3d 1475, 1476, lv denied 2 NY3d 765). The sentence is not unduly harsh or severe.