PEOPLE v. BROKENBOUGH (2008)

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered December 20, 2006, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the County Court's charge to the jury concerning the defendant as an interested witness shifted the burden of proof or undermined the presumption of innocence is without merit.   The jury charge properly identified the defendant as an example of an interested witness and permitted the jury to consider whether any witness's interest or lack of interest in the outcome of the case affected the truthfulness of such witness's testimony (see People v. Agosto, 73 N.Y.2d 963, 967, 540 N.Y.S.2d 988, 538 N.E.2d 340;  People v. Blake, 39 A.D.3d 402, 403, 835 N.Y.S.2d 78).   The jury charge contained no language stating that the defendant had “a motive to lie or deep personal interest in the case,” and nothing in the charge assumed or suggested that he was guilty or shifted the burden of proof (People v. Blake, 39 A.D.3d 402, 403, 835 N.Y.S.2d 78;  cf. People v. Ochs, 3 N.Y.2d 54, 163 N.Y.S.2d 671, 143 N.E.2d 388;  United States v. Brutus, 505 F.3d 80, 87-88;  United States v. Gaines, 457 F.3d 238, 244-250).

The defendant's contention that the County Court considered improper factors in imposing sentence is unpreserved for appellate review (see CPL 470.05[2];  People v. Santos-Mispas, 38 A.D.3d 923, 831 N.Y.S.2d 344).   In any event, this contention is without merit (see People v. Santos-Mispas, 38 A.D.3d 923, 831 N.Y.S.2d 344;  People v. Harrison, 188 A.D.2d 374, 375, 591 N.Y.S.2d 375).   Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.