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

930
KA 09-02649
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JOHN W. STUBINGER, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered November 10, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the third degree (15 counts).

     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 NY2d 620, 621), we reject that contention (see generally
People v Bleakley, 69 NY2d 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 NY2d 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 NY2d 233, 241-242; People v
Ventimiglia, 52 NY2d 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
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                                                         KA 09-02649

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]).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
