        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

546
KA 12-00838
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC J. MOTZER, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered April 5, 2012. The judgment convicted defendant, upon a
jury verdict, of rape in the second degree, criminal sexual act in the
second degree, criminal sale of marihuana in the second degree and
endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by directing that the sentences shall run
concurrently with respect to each other and by amending the order of
protection and as modified the judgment is affirmed and the matter is
remitted to Wyoming County Court for further proceedings in accordance
with the following Memorandum: On appeal from a judgment convicting
him upon a jury verdict of rape in the second degree (Penal Law §
130.30 [1]), criminal sexual act in the second degree (§ 130.45 [1]),
criminal sale of marihuana in the second degree (§ 221.50), and
endangering the welfare of a child (§ 260.10 [1]), defendant contends
that the verdict is against the weight of the evidence. We reject
that contention. Viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
“[R]esolution of issues of credibility, as well as the weight to be
accorded to the evidence presented, are primarily questions to be
determined by the jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv
denied 13 NY3d 942 [internal quotation marks omitted]).

     Defendant’s further contention that he was punished for
exercising his right to a jury trial is not preserved for our review
“inasmuch as defendant failed to raise [it] at sentencing” (People v
Stubinger, 87 AD3d 1316, 1317, lv denied 18 NY3d 862), and in any
event it lacks merit. “ ‘[T]he mere fact that a sentence imposed
                                 -2-                           546
                                                         KA 12-00838

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’ ” (id.). We agree
with defendant, however, that the sentence is unduly harsh and severe.
We therefore modify the sentence as a matter of discretion in the
interest of justice by directing that all of the sentences shall run
concurrently with respect to each other (see CPL 470.15 [6] [b]). In
view of our modification of the judgment with respect to the sentence,
we further modify the judgment by amending the order of protection,
and we remit the matter to County Court for a recalculation of its
expiration date (see generally People v Wallace, 53 AD3d 795, 798, lv
denied 11 NY3d 795).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
