| People v Stubinger |
| 2011 NY Slip Op 06716 [87 AD3d 1316] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John W.Stubinger, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedNovember 10, 2009. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the third degree (15 counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of 15 countsof criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), defendantcontends that the conviction is not supported by legally sufficient evidence. Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620,621 [1983]), we reject that contention (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Moreover, viewing the evidence in light of the elements of the counts as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495).
We also conclude that there is no merit to defendant's contention that County Court erred inadmitting evidence of an uncharged crime, i.e., defendant's alleged threat to cut the body of hisgirlfriend. Such evidence was probative with respect to the issue whether defendant brandishedthe knives described in the indictment with the intent to use them unlawfully against anotherindividual (Penal Law § 265.01 [2]; see § 265.02 [1]), and the court properlyconcluded that the probative value of that evidence outweighed its potential for prejudice (see People v Freece, 46 AD3d1428 [2007], lv denied 10 NY3d 811 [2008]; see generally People v Alvino,71 NY2d 233, 241-242 [1987]; People v Ventimiglia, 52 NY2d 350, 359-360 [1981]). Inany event, " 'the court provided the jury with appropriate limiting instructions immediately afterthe challenged testimony was elicited,' thus minimizing any potential prejudice to defendant" (People v Bassett, 55 AD3d 1434,1436 [2008], lv denied 11 NY3d 922 [2009]).
Defendant failed to preserve for our review his further contention that, in determining thesentence to be imposed, the court penalized him for exercising his right to a jury trial, inasmuchas defendant failed to raise that contention at sentencing (see People v Brink, 78 AD3d 1483, 1485 [2010], lv denied16 NY3d 742 [2011], reconsideration denied 16 NY3d 828 [2011]; People v Dorn, 71 AD3d 1523,1523-1524 [2010]). In any event, that contention lacks merit. "[T]he mere fact that a sentenceimposed after [*2]trial is greater than that offered in connectionwith plea negotiations is not proof that defendant was punished for asserting his right to trial. . . , and there is no indication in the record before us that the sentencing courtacted in a vindictive manner based on defendant's exercise of the right to a trial" (Brink,78 AD3d at 1485 [internal quotation marks omitted]). Present—Smith, J.P., Fahey,Peradotto, Lindley and Sconiers, JJ.