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
-2- 384 

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