People v. Foster , 855 N.Y.S.2d 805 ( 2008 )

Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered December 18, 2006. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree.

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

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and one count each of criminal possession of a controlled substance in the third degree (§ 220.16 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Contrary to the contention of defendant, the verdict is not against the weight of the evidence based on the jury’s rejection of his agency defense (see People v Rojas, 25 AD3d 325 [2006], lv denied 6 NY3d 837 [2006]; People v Jackson, 11 AD3d 928, 929 [2004], lv denied 3 NY3d 757 [2004]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant failed to preserve for our review his further contention that County Court penalized him for exercising his right to a trial by imposing a greater sentence than that offered before trial (see People v Hurley, 75 NY2d 887 [1990]; People v Voymas, 39 AD3d 1182, 1184 [2007], lv denied 9 NY3d 852 [2007]) and, in any event, that contention is without merit (see People v Woods, 21 AD3d 1314, 1315 [2005], lv denied 6 NY3d 761 [2005]; People v Urrutia, 2 AD3d 1475, 1476 [2003], lv denied 2 NY3d 765 [2004]). The sentence is not unduly harsh or severe. Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.