People v. Fuller

Appellate Division of the Supreme Court of New York

People v. Fuller

252 A.D.2d 353, 675 N.Y.S.2d 533, 1998 N.Y. App. Div. LEXIS 7903

Appellate Division of the Supreme Court of the State of New York·Decided July 2, 1998·Published·Cited by 2 cases

Opinion

—Judgment, Supreme Court, Bronx County (Denis Boyle, J.), rendered March 13, 1996, convicting defendant, after a jury trial, of [354]*354grand larceny in the fourth degree, and sentencing him, as second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The trial court did not constructively amend the indictment by instructing the jury that it could consider the property stolen to be either the bag containing the 17 vials of crack cocaine or the bracelet as alleged in the indictment, where such variance was based on defendant’s own testimony that he committed a different version of the crime (People v Spann, 56 NY2d 469). Defendant did not preserve his claim that the court was required to provide a claim-of-right charge (Penal Law § 155.15 [1]), and we decline to review it in the interest of justice. Were we to review this contention, we would find that defendant’s testimony failed to support such a charge. Concur— Sullivan, J. P., Milonas, Rubin, Williams and Andrias, JJ.

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—Judgment, Supreme Court, Bronx County (Denis Boyle, J.), rendered March 13, 1996, convicting defendant, after a jury trial, of [354]*354grand larceny in the fourth degree, and sentencing him, as second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The trial court did not constructively amend the indictment by instructing the jury that it could consider the property stolen to be either the bag containing the 17 vials of crack cocaine or the bracelet as alleged in the indictment, where such variance was based on defendant’s own testimony that he committed a different version of the crime (People v Spann, 56 NY2d 469). Defendant did not preserve his claim that the court was required to provide a claim-of-right charge (Penal Law § 155.15 [1]), and we decline to review it in the interest of justice. Were we to review this contention, we would find that defendant’s testimony failed to support such a charge. Concur— Sullivan, J. P., Milonas, Rubin, Williams and Andrias, JJ.

People v. Fuller, 252 A.D.2d 353, 675 N.Y.S.2d 533, 1998 N.Y. App. Div. LEXIS 7903 (N.Y. Ct. App. 1998).

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Opinion

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