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PEOPLE of the State of New York, Plaintiff-Respondent, v. Wilfredo IRRIZARRY, Defendant-Appellant.
Defendant appeals from a judgment convicting him after a jury trial of promoting prison contraband in the first degree (Penal Law § 205.25[2] ). We reject the contention of defendant that the verdict is against the weight of the evidence. A sergeant at the correctional facility testified that he observed defendant sitting on a step in the recreation area, scraping something. The sergeant ordered defendant to hand over the item, which was a metal rod, approximately three inches long, that was partially sharpened. The sergeant testified that the item was a weapon. We conclude that the jury did not fail to give the evidence the weight it should be accorded on the issue of defendant's possession of dangerous contraband (see People v. Sharpe, 295 A.D.2d 957, 958, 744 N.Y.S.2d 606; see also People v. Mendoza, 244 A.D.2d 815, 816-817, 666 N.Y.S.2d 260, lv. denied 91 N.Y.2d 943, 671 N.Y.S.2d 723, 694 N.E.2d 892; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The further contention of defendant that he was impermissibly penalized for asserting his right to a trial is not preserved for our review (see People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017; People v. Robinson, 287 A.D.2d 582, 731 N.Y.S.2d 490, lv. denied 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312). In any event, that contention is without merit. “The mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial” (People v. Simon, 180 A.D.2d 866, 867, 580 N.Y.S.2d 493, lv. denied 80 N.Y.2d 838, 587 N.Y.S.2d 922, 923, 600 N.E.2d 649, 650; see People v. Pena, 50 N.Y.2d 400, 412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814). A review of the record reveals no evidence of retaliation or vindictiveness on the part of County Court (see People v. White, 12 A.D.3d 1200, 785 N.Y.S.2d 262, lv. denied 4 N.Y.3d 768, 792 N.Y.S.2d 12, 825 N.E.2d 144; Robinson, 287 A.D.2d at 582-583, 731 N.Y.S.2d 490; Simon, 180 A.D.2d at 867, 580 N.Y.S.2d 493).
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
MEMORANDUM:
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Decided: February 02, 2007
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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