People v. Sherman

288 A.D.2d 894, 732 N.Y.S.2d 384, 2001 N.Y. App. Div. LEXIS 10614

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2001
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her after a jury trial of grand larceny in the third degree (Penal Law § 155.35) and falsifying business records in the first degree (Penal Law § 175.10). Defendant contends that the conviction is not supported by legally sufficient evidence because the People failed to establish that it was she, rather than someone else in the office where she was employed, who stole the money from her employer and altered her employer’s computer records. That contention is not preserved for our review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19), and in any event is without merit (see, People v Middleton, 277 AD2d 468, 468-469, Iv denied 96 NY2d 761; People v Peck, 272 AD2d 946). The verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant’s further contention that the People should have preserved the computer hard drives and back-up tapes as evidence is not preserved for our review (see, CPL 470.05 [2]), and 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]). Finally, contrary to the contention of defendant, she received effective assistance of counsel (see generally, People v Baldi, 54 NY2d 137, 147). Defendant failed to show that defense counsel’s alleged failures lacked any strategic or other legitimate explanation (see, People v Drone, 272 AD2d 53, Iv denied 95 NY2d 864; see generally, People v Benevento, 91 NY2d 708, 712). (Appeal from Judgment of Niagara County Court, Fricano, J. — Grand Larceny, 3rd Degree.) Present— Green, J. P., Hayes, Scudder, Kehoe and Burns, JJ.