| People v Glynn |
| 2012 NY Slip Op 02234 [93 AD3d 1341] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John G.Glynn, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedMay 18, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession ofmarihuana in the second degree, criminal sale of marihuana in the second degree, criminalpossession of marihuana in the fourth degree and criminal sale of marihuana in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, criminal possession of marihuana in the second degree (Penal Law § 221.25) andcriminal sale of marihuana in the second degree (§ 221.50). Contrary to defendant'scontention, County Court (Hafner, Jr., J.) was not required to recuse itself based on the fact thatJudge Hafner had previously represented defendant on an unrelated matter and may havepreviously prosecuted him on another unrelated matter (see People v Moreno, 70 NY2d403, 406 [1987]; People v Casey, 61AD3d 1011, 1014 [2009], lv denied 12 NY3d 913 [2009]; People v Lerario, 43 AD3d 492,492-493 [2007]). "Moreover, none of [the c]ourt's remarks . . . was indicative ofbias against defendant and, therefore, recusal was not warranted on [that] basis" (Casey,61 AD3d at 1014; see People v Johnson, 294 AD2d 908, 908 [2002], lv denied98 NY2d 677 [2002]; see also People v Grier, 273 AD2d 403, 405-406 [2000]).
Viewing the evidence, the law and the circumstances of this case in totality and as of the timeof the representation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). Defendant's general motionfor a trial order of dismissal was insufficient to preserve for our review his further contention thatthe conviction is not supported by legally sufficient evidence (see People v Hawkins, 11 NY3d 484, 492 [2008]; People vGray, 86 NY2d 10, 19 [1995]). In any event, that contention lacks merit (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).[*2]
We reject defendant's further contention that theimposition of consecutive sentences for criminal possession of marihuana in the second degreeand criminal sale of marihuana in the second degree is harsh and excessive (cf. People vHutzler, 270 AD2d 934, 936 [2000], lv denied 94 NY2d 948 [2000]; People vTovar, 258 AD2d 943 [1999], lv denied 93 NY2d 930 [1999]). Defendant failed topreserve for our review his contention that he was penalized for exercising his right to a jury trialinasmuch as he failed to raise that contention at the time of sentencing (see e.g. People v Stubinger, 87 AD3d1316, 1317 [2011]; People vBrink, 78 AD3d 1483, 1485 [2010], lv denied 16 NY3d 742 [2011],reconsideration denied 16 NY3d 828 [2011]). In any event, that contention is withoutmerit. "[T]he mere fact that a sentence imposed after trial is greater than that offered inconnection with plea negotiations is not proof that defendant was punished for asserting his rightto trial" (Brink, 78 AD3d at 1485 [internal quotation marks omitted]).Present—Smith, J.P., Peradotto, Carni and Sconiers, JJ.