Opinion
1999-09939
Submitted May 2, 2002.
June 10, 2002.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered October 14, 1999, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Robert C. Mitchell, Riverhead, N.Y. (Robert B. Kenney of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N Y (Guy Arcidiacono of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the People failed to disprove the agency defense beyond a reasonable doubt is not preserved for appellate review (see People v. Shands, 269 A.D.2d 613, 614). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to disprove the defendant's claim that he was acting as an agent of the undercover officer in the narcotics transaction (see People v. Leybovich, 201 A.D.2d 670; People v. Torres, 150 A.D.2d 816). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The defendant's contention that the sentence imposed improperly penalized him for exercising his right to a jury trial is also unpreserved for review, since he did not set forth the issue on the record at the time of sentencing (see People v. Robinson, 287 A.D.2d 582, lv denied 97 N.Y.2d 708). In any event, the contention is without merit. The record discloses no vindictiveness on the part of the County Court in arriving at the sentence, and the fact that the sentence imposed at trial was greater than that offered during plea negotiations is irrelevant (see People v. Robinson, supra; People v. Allah, 283 A.D.2d 436; People v. Bellilli, 270 A.D.2d 355). The sentence imposed was not otherwise excessive (see People v. Suitte, 90 A.D.2d 80).
SANTUCCI, J.P., FLORIO, GOLDSTEIN and TOWNES, JJ., concur.