PEOPLE v. LUSBY

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Aaron LUSBY, Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, LAWTON, AND HAYES, JJ. John E. Tyo, Shortsville, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Plaintiff-Respondent.

We reject the contention of defendant that the evidence that he signed a blank fingerprint card with a false name is legally insufficient to support his conviction of forgery in the second degree (Penal Law § 170.10 [2];  see People v. Van Schoick, 198 A.D.2d 907, 604 N.Y.S.2d 455, lv. denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502;  see also People v. Kirk, 115 A.D.2d 758, 497 N.Y.S.2d 139, affd. 68 N.Y.2d 722, 506 N.Y.S.2d 333, 497 N.E.2d 700).   We reject the further contention of defendant that the verdict is against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   County Court did not abuse its discretion in denying defendant's belated request for funds to hire a forensic toxicologist (see People v. Drumgoole, 234 A.D.2d 888, 889-890, 652 N.Y.S.2d 443, lv. denied 89 N.Y.2d 1011, 658 N.Y.S.2d 249, 680 N.E.2d 623;  People v. Schneider, 188 A.D.2d 754, 756-757, 591 N.Y.S.2d 550, lv. denied 81 N.Y.2d 892, 597 N.Y.S.2d 954, 613 N.E.2d 986).   Defendant was not denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We reject the contention of defendant that the court penalized him for exercising his right to trial by imposing a more severe sentence than that offered pursuant to a plea bargain (see People v. Samuels, 269 A.D.2d 859, 703 N.Y.S.2d 768, lv. denied 94 N.Y.2d 925, 708 N.Y.S.2d 364, 729 N.E.2d 1163;  People v. Jones, 229 A.D.2d 980, 645 N.Y.S.2d 692, lv. denied 89 N.Y.2d 925, 654 N.Y.S.2d 727, 677 N.E.2d 299).   As a matter of discretion in the interest of justice, however, we modify the judgment by vacating the finding that defendant is a persistent felony offender and reducing the sentence imposed on the forgery count to an indeterminate term of incarceration of 3 1/212 to 7 years (see People v. Rivera, 166 A.D.2d 367, 368-369, 561 N.Y.S.2d 172, lv. denied 77 N.Y.2d 842, 567 N.Y.S.2d 211, 568 N.E.2d 660;  see also People v. Clarke, 222 A.D.2d 1035, 636 N.Y.S.2d 529, lv. denied 88 N.Y.2d 934, 647 N.Y.S.2d 168, 670 N.E.2d 452).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by vacating the finding that defendant is a persistent felony offender and reducing the sentence imposed on forgery in the second degree to an indeterminate term of incarceration of 3 1/212 to 7 years and as modified the judgment is affirmed.

MEMORANDUM: