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

961
KA 12-01586
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRIAN K. HUTCHINGS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered May 26, 2011. The judgment convicted
defendant, upon a jury verdict, of bribe receiving in the third
degree, receiving reward for official misconduct in the second degree,
official misconduct, coercion in the second degree (three counts),
falsifying business records in the first degree, offering a false
instrument for filing in the second degree, falsely reporting an
incident in the third degree, making a punishable false written
statement, obstructing governmental administration in the second
degree and harassment in the second degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of, inter alia, bribe receiving in
the third degree (Penal Law § 200.10), and in appeal No. 2, he appeals
from a judgment convicting him upon a jury verdict of, inter alia, a
separate count of bribe receiving in the third degree (id.).

     We reject defendant’s contention in both appeal Nos. 1 and 2 that
his conviction for bribe receiving in the third degree is not
supported by legally sufficient evidence. In each case, the People
presented legally sufficient evidence from which the jury could find
that defendant accepted free or discounted goods or services from
local companies “upon an agreement or understanding” that defendant’s
“opinion, judgment, action, decision or exercise of discretion as a
public servant” would be influenced thereby (Penal Law § 200.10; see
People v Bac Tran, 80 NY2d 170, 175-176, rearg denied 81 NY2d 784;
People v Harper, 145 AD2d 933, 933, affd 75 NY2d 313; People v Kitsos,
299 AD2d 291, 291-292, lv denied 100 NY2d 540; People v Souvenir, 209
AD2d 455, 455-456, lv denied 85 NY2d 914). Furthermore, viewing the
                                 -2-                           961
                                                         KA 12-01586

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).

     Defendant failed to preserve his contention that he was deprived
of his right to a fair trial by prosecutorial misconduct (see CPL
470.05 [2]), and we decline to exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Defendant’s contention that County Court should have taken
judicial notice of 17 NYCRR 820.13 was abandoned by his express
agreement to the court’s instruction to the jury on the lawful stop of
a vehicle (see People v Graves, 85 NY2d 1024, 1027; People v Dennis,
55 AD3d 385, 385, lv denied 12 NY3d 783; see also CPL 470.05 [2]),
which conveyed the appropriate legal standard to the jury in any event
(see People v Fields, 87 NY2d 821, 823; People v Rose, 67 AD3d 1447,
1448). We have considered defendant’s remaining contentions and
conclude that they are without merit.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
