GLYNN, JOHN G., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
384
KA 09-01504
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOHN G. GLYNN, DEFENDANT-APPELLANT.
SUGARMAN LAW FIRM, LLP, SYRACUSE (PAUL V. MULLIN OF COUNSEL), FOR
DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered May 18, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of marihuana in
the second degree, criminal sale of marihuana in the second degree,
criminal possession of marihuana in the fourth degree and criminal
sale of marihuana in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, criminal possession of
marihuana in the second degree (Penal Law § 221.25) and criminal sale
of marihuana in the second degree (§ 221.50). Contrary to defendant’s
contention, County Court (Hafner, Jr., J.) was not required to recuse
itself based on the fact that Judge Hafner had previously represented
defendant on an unrelated matter and may have previously prosecuted
him on another unrelated matter (see People v Moreno, 70 NY2d 403,
406; People v Casey, 61 AD3d 1011, 1014, lv denied 12 NY3d 913; People
v Lerario, 43 AD3d 492, 492-493). “Moreover, none of [the c]ourt’s
remarks . . . was indicative of bias against defendant and, therefore,
recusal was not warranted on [that] basis” (Casey, 61 AD3d at 1014;
see People v Johnson, 294 AD2d 908, 908, lv denied 98 NY2d 677; see
also People v Grier, 273 AD2d 403, 405-406).
Viewing the evidence, the law and the circumstances of this case
in totality and as of the time of the representation, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147). Defendant’s general motion for a trial
order of dismissal was insufficient to preserve for our review his
further contention that the conviction is not supported by legally
sufficient evidence (see People v Hawkins, 11 NY3d 484, 492; People v
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KA 09-01504
Gray, 86 NY2d 10, 19). In any event, that contention lacks merit (see
generally People v Bleakley, 69 NY2d 490, 495). 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 reject defendant’s contention
that the verdict is against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).
We reject defendant’s further contention that the imposition of
consecutive sentences for criminal possession of marihuana in the
second degree and criminal sale of marihuana in the second degree is
harsh and excessive (cf. People v Hutzler, 270 AD2d 934, 936, lv
denied 94 NY2d 948; People v Tovar, 258 AD2d 943, lv denied 93 NY2d
930). Defendant failed to preserve for our review his contention that
he was penalized for exercising his right to a jury trial inasmuch as
he failed to raise that contention at the time of sentencing (see e.g.
People v Stubinger, 87 AD3d 1316, 1317; People v Brink, 78 AD3d 1483,
1485, lv denied 16 NY3d 742, 828). In any event, that contention is
without 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” (Brink, 78 AD3d at 1485 [internal quotation marks omitted]).
Entered: March 23, 2012 Frances E. Cafarell
Clerk of the Court