Opinion
No. KA 05-02604.
February 8, 2007.
Appeal from a judgment of the Livingston County Court (Ronald A. Cicoria, J.), rendered March 1, 2005. The judgment convicted defendant, upon a jury verdict, of promoting prison contraband in the first degree.
John E. Tyo, Shortsville, for defendant-appellant.
Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener Of Counsel), for plaintiff-respondent.
Present Scudder, P.J., Martoche, Centra, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of promoting prison contraband in the first degree (Penal Law § 205.25). We reject the contention of defendant that the verdict is against the weight of the evidence. A sergeant at the correctional facility testified that he observed defendant sitting on a step in the recreation area, scraping something. The sergeant ordered defendant to hand over the item, which was a metal rod, approximately three inches long, that was partially sharpened. The sergeant testified that the item was a weapon. We conclude that the jury did not fail to give the evidence the weight it should be accorded on the issue of defendant's possession of dangerous contraband ( see People v Sharpe, 295 AD2d 957, 958; see also People v Mendoza, 244 AD2d 815, 816-817, lv denied 91 NY2d 943; see generally People v Bleakley, 69 NY2d 490, 495). The further contention of defendant that he was impermissibly penalized for asserting his right to a trial is not preserved for our review ( see People v Hurley, 75 NY2d 887; People v Robinson, 287 AD2d 582, lv denied 97 NY2d 708). In any event, that contention is without merit. "The 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" ( People v Simon, 180 AD2d 866, 867, lv denied 80 NY2d 838; see People v Pena, 50 NY2d 400, 412, rearg denied 51 NY2d 770, cert denied 449 US 1087). A review of the record reveals no evidence of retaliation or vindictiveness on the part of County Court ( see People v White, 12 AD3d 1200, lv denied 4 NY3d 768; Robinson, 287 AD2d at 582-583; Simon, 180 AD2d at 867).