| People v Givhan |
| 2010 NY Slip Op 07960 [78 AD3d 730] |
| November 3, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RonaldGivhan, Appellant. |
—[*1] Longworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Cohen, J.),rendered February 3, 2009, convicting him of criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing (Molea, J.), of that branch of the defendant'somnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was tosuppress physical evidence. The record does not support the defendant's contention that the arrestingofficer's testimony was patently tailored to overcome constitutional objections, or was otherwiseunworthy of belief (see People vMuriello, 71 AD3d 1050 [2010]; People v Blankumsce, 66 AD3d 692, 693 [2009]; People v Coles, 62 AD3d 1022, 1023[2009]; People v Cooks, 57 AD3d796, 797 [2008]; People v Rivera,27 AD3d 489, 490 [2006]).
Furthermore, we reject the defendant's claim that he was deprived of a fair trial because thearresting officer was permitted to testify as to the content of a tip received from an anonymousinformant indicating that a man matching the defendant's description was in possession of a gun. Thechallenged testimony was properly admitted to provide background information as to why the officerapproached the defendant and to prevent the jury from drawing an unfair inference that the officerarbitrarily stopped the defendant (see People v Tosca, 98 NY2d 660, 661 [2002]; People v Johnson, 76 AD3d 1103[2010]; People v Valdez, 69 AD3d452, 453 [2010]; People vStevenson, 67 AD3d 605 [2009]; People v Jenkins, 49 AD3d 780 [2008]; People v Bailey, 21 AD3d 383, 384[2005]), and was more probative than prejudicial (cf. People v Resek, 3 NY3d 385 [2004]). Moreover, the trial courtnullified any potential prejudice by properly instructing the jury as to the limited purpose of thistestimony (see People v Tosca, 98 NY2d at 661; People v Johnson, 76 AD3d 1103 [2010]; People v Garson, 69 AD3d 650, 651[2010]).
The defendant's contention that the sentence imposed punished him for exercising his right to a jurytrial rather than accepting a plea offer is unpreserved for appellate review (see People v Hurley,75 NY2d 887, 888 [1990]; People vClerge, 69 AD3d 955, 956 [2010]; People v Brock, 69 AD3d 644 [2010]; People v [*2]Garcia, 66 AD3d 699, 701 [2009]). In any event, the fact thatthe sentence imposed after trial was greater than the sentence offered during plea negotiations is not,standing alone, an indication that the defendant was punished for exercising his right to trial (see People v Johnson, 76 AD3d 1103[2010]; People v Toussaint, 74 AD3d846 [2010], lv denied 15 NY3d 856 [2010]; People v Rodriguez, 73 AD3d 815 [2010], lv denied 15 NY3d777 [2010]; People v Brock, 69 AD3d644 [2010]). Skelos, J.P., Dickerson, Eng and Lott, JJ., concur.