Opinion
KA 02-01718.
December 31, 2003.
Appeal from a judgment of Ontario County Court (Harvey, J.), entered July 17, 2002, convicting defendant after a jury trial of forgery in the second degree and attempted petit larceny.
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., SCUDDER, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by vacating the finding that defendant is a persistent felony offender and reducing the sentence imposed on forgery in the second degree to an indeterminate term of incarceration of 3½ to 7 years and as modified the judgment is affirmed.
Memorandum: We reject the contention of defendant that the evidence that he signed a blank fingerprint card with a false name is legally insufficient to support his conviction of forgery in the second degree (Penal Law § 170.10; see People v. Van Schoick, 198 A.D.2d 907, lv denied 83 N.Y.2d 811; see also People v. Kirk, 115 A.D.2d 758, affd 68 N.Y.2d 722). We reject the further contention of defendant that the verdict is against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). County Court did not abuse its discretion in denying defendant's belated request for funds to hire a forensic toxicologist ( see People v. Drumgoole, 234 A.D.2d 888, 889-890, lv denied 89 N.Y.2d 1011; People v. Schneider, 188 A.D.2d 754, 756-757, lv denied 81 N.Y.2d 892) . Defendant was not denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147). We reject the contention of defendant that the court penalized him for exercising his right to trial by imposing a more severe sentence than that offered pursuant to a plea bargain ( see People v. Samuels, 269 A.D.2d 859, lv denied 94 N.Y.2d 925; People v. Jones, 229 A.D.2d 980, lv denied 89 N.Y.2d 925). As a matter of discretion in the interest of justice, however, we modify the judgment by vacating the finding that defendant is a persistent felony offender and reducing the sentence imposed on the forgery count to an indeterminate term of incarceration of 3½ to 7 years ( see People v. Rivera, 166 A.D.2d 367, 368-369, lv denied 77 N.Y.2d 842; see also People v. Clarke, 222 A.D.2d 1035, lv denied 88 N.Y.2d 934).