People v. Adams

266 A.D.2d 831, 699 N.Y.S.2d 245, 1999 N.Y. App. Div. LEXIS 11838

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him after a jury trial of grand larceny in the fourth degree (Penal Law § 155.30 [6]), defendant contends that County Court erred in submitting grand larceny in the fourth degree (larceny by extortion) (Penal Law § 155.30 [6]) as a lesser included offense of robbery in the third degree (Penal Law § 160.05). Although defendant is correct that larceny by extortion is not a lesser included offense of robbery (see, People v Koh, 225 AD2d 476, lv denied 88 NY2d 997), defendant withdrew his initial objection to the charge. Thus, “by acquiescing in * * * [the] lesser charge [, defendant] waived his right to complain of the trial court’s error” (People v Ford, 62 NY2d 275, 283). Defendant’s contention that the court’s preliminary instructions were defective (see, CPL 270.40) is not preserved for our review (see, CPL 470.05 [2]; see also, People v Giddens, 202 AD2d 976, lv denied 83 NY2d 871), 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 also failed to preserve for our review his contention regarding the presentence investigation report (see, People v Moon, 225 AD2d 826, 827-828, lv denied 88 NY2d 939). (Appeal from Judgment of Niagara County Court, Hannigan, J. — Grand Larceny, 4th Degree.) Present — Denman, P. J., Hayes, Hurlbutt, Scudder and Balio, JJ.