THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOHN STUBINGER DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOHN W. STUBINGER, DEFENDANT–APPELLANT.

KA 09–02649

Decided: September 30, 2011

PRESENT:  SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him, upon a jury verdict, of 15 counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), defendant contends that the conviction is not supported by legally sufficient evidence.   Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), we reject that contention (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Moreover, viewing the evidence in light of the elements of the counts as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

We also conclude that there is no merit to defendant's contention that County Court erred in admitting evidence of an uncharged crime, i.e., defendant's alleged threat to cut the body of his girlfriend.   Such evidence was probative with respect to the issue whether defendant brandished the knives described in the indictment with the intent to use them unlawfully against another individual (Penal Law § 265.01[2];  see § 265.02[1] ), and the court properly concluded that the probative value of that evidence outweighed its potential for prejudice (see People v. Freece, 46 AD3d 1428, lv denied 10 NY3d 811;  see generally People v. Alvino, 71 N.Y.2d 233, 241–242;  People v. Ventimiglia, 52 N.Y.2d 350, 359–360).   In any event, “ ‘the court provided the jury with appropriate limiting instructions immediately after the challenged testimony was elicited,’ thus minimizing any potential prejudice to defendant” (People v. Bassett, 55 AD3d 1434, 1436, lv denied 11 NY3d 922).

Defendant failed to preserve for our review his further contention that, in determining the sentence to be imposed, the court penalized him for exercising his right to a jury trial, inasmuch as defendant failed to raise that contention at sentencing (see People v. Brink, 78 AD3d 1483, 1485, lv denied 16 NY3d 742, rearg. denied 16 NY3d 828;  People v. Dorn, 71 AD3d 1523, 1523–1524).   In any event, that contention lacks merit.  “[T]he 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 ․, and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial” (Brink, 78 AD3d at 1485 [internal quotation marks omitted] ).

Patricia L. Morgan

Clerk of the Court