| People v Foster |
| 2008 NY Slip Op 03835 [50 AD3d 1559] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Elbert Foster,Jr., Appellant. |
—[*1] Richard E. Swinehart, District Attorney, Lyons (Melvin Bressler of counsel), forrespondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), renderedDecember 18, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the third degree (two counts), criminal possession of a controlledsubstance in the third degree and criminal possession of a weapon in the third degree.
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, oftwo counts of criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]) and one count each of criminal possession of a controlled substance in the thirddegree (§ 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 theevidence based on the jury's rejection of his agency defense (see People v Rojas, 25 AD3d 325 [2006], lv denied 6NY3d 837 [2006]; People vJackson, 11 AD3d 928, 929 [2004], lv denied 3 NY3d 757 [2004]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for ourreview his further contention that County Court penalized him for exercising his right to a trialby imposing a greater sentence than that offered before trial (see People v Hurley, 75NY2d 887 [1990]; People vVoymas, 39 AD3d 1182, 1184 [2007], lv denied 9 NY3d 852 [2007]) and, inany event, that contention is without merit (see People v Woods, 21 AD3d 1314, 1315 [2005], lvdenied 6 NY3d 761 [2005]; Peoplev Urrutia, 2 AD3d 1475, 1476 [2003], lv denied 2 NY3d 765 [2004]). Thesentence is not unduly harsh or severe. Present—Centra, J.P., Lunn, Peradotto, Green andPine, JJ.