PEOPLE v. FOSTER (2008)

Defendant appeals from a judgment convicting him, upon a jury verdict, of two 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 third degree (§ 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 the evidence based on the jury's rejection of his agency defense (see People v. Rojas, 25 A.D.3d 325, 805 N.Y.S.2d 831, lv. denied 6 N.Y.3d 837, 814 N.Y.S.2d 86, 847 N.E.2d 383;  People v. Jackson, 11 A.D.3d 928, 929, 784 N.Y.S.2d 758, lv. denied 3 N.Y.3d 757, 788 N.Y.S.2d 674, 821 N.E.2d 979;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant failed to preserve for our review his further contention that County Court penalized him for exercising his right to a trial by imposing a greater sentence than that offered before trial (see People v. Hurley, 75 N.Y.2d 887, 554 N.Y.S.2d 469, 553 N.E.2d 1017;  People v. Voymas, 39 A.D.3d 1182, 1184, 833 N.Y.S.2d 823, lv. denied 9 N.Y.3d 852, 840 N.Y.S.2d 779, 872 N.E.2d 892) and, in any event, that contention is without merit (see People v. Woods, 21 A.D.3d 1314, 1315, 804 N.Y.S.2d 874, lv. denied 6 N.Y.3d 761, 810 N.Y.S.2d 429, 843 N.E.2d 1169;  People v. Urrutia, 2 A.D.3d 1475, 1476, 770 N.Y.S.2d 526, lv. denied 2 N.Y.3d 765, 778 N.Y.S.2d 784, 811 N.E.2d 46).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: