People v. Mccain

Appellate Division of the Supreme Court of New York

People v. Mccain

307 A.D.2d 764, 762 N.Y.S.2d 561, 2003 N.Y. App. Div. LEXIS 7922

Appellate Division of the Supreme Court of the State of New York·Decided July 3, 2003·Published·Cited by 4 cases

Opinion

Appeal from a judgment of Oneida County Court (Donalty, J.), entered November 30, 2001, convicting defendant after a jury trial of grand larceny in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of grand larceny in the third degree (Penal Law § 155.35) for stealing a vehicle from the car dealer[765]*765ship where he was employed. The contention of defendant that the evidence is legally insufficient to establish his intent to commit larceny was not preserved by his general motion to dismiss at the close of the People’s case (see People v Gray, 86 NY2d 10, 19 [1995]; People v Horn, 302 AD2d 975 [2003]), or by his motion to set aside the verdict pursuant to CPL 330.30 (see People v Padro, 75 NY2d 820, 821 [1990], rearg denied 75 NY2d 1005 [1990]; People v Slavin, 299 AD2d 499 [2002]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). In addition, by consenting to the prosecutor’s use of evidence of a prior bad act, defendant waived his contention that County Court’s Ventimiglia ruling was erroneous (see People v Molina, 241 AD2d 329 [1997], lv denied 91 NY2d 835 [1997]). Present — Pine, J.P., Hurlbutt, Scudder, Kehoe and Lawton, JJ.

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Appeal from a judgment of Oneida County Court (Donalty, J.), entered November 30, 2001, convicting defendant after a jury trial of grand larceny in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of grand larceny in the third degree (Penal Law § 155.35) for stealing a vehicle from the car dealer[765]*765ship where he was employed. The contention of defendant that the evidence is legally insufficient to establish his intent to commit larceny was not preserved by his general motion to dismiss at the close of the People’s case (see People v Gray, 86 NY2d 10, 19 [1995]; People v Horn, 302 AD2d 975 [2003]), or by his motion to set aside the verdict pursuant to CPL 330.30 (see People v Padro, 75 NY2d 820, 821 [1990], rearg denied 75 NY2d 1005 [1990]; People v Slavin, 299 AD2d 499 [2002]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). In addition, by consenting to the prosecutor’s use of evidence of a prior bad act, defendant waived his contention that County Court’s Ventimiglia ruling was erroneous (see People v Molina, 241 AD2d 329 [1997], lv denied 91 NY2d 835 [1997]). Present — Pine, J.P., Hurlbutt, Scudder, Kehoe and Lawton, JJ.

People v. Mccain, 307 A.D.2d 764, 762 N.Y.S.2d 561, 2003 N.Y. App. Div. LEXIS 7922 (N.Y. Ct. App. 2003).

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