People v. Williams

295 A.D.2d 968, 743 N.Y.S.2d 353, 2002 N.Y. App. Div. LEXIS 6309

Opinion

—Appeal from a judgment of Erie County Court (McCarthy, J.), entered February 1, 2000, convicting defendant after a jury trial of, inter alia, burglary 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 following a jury trial of burglary in the third degree (Penal Law § 140.20) and attempted grand larceny in the third degree (§§ 110.00, 155.35) arising from his attempted theft of a motor vehicle. Contrary to the contention of defendant, County Court properly denied his request to charge attempted grand larceny in the fourth degree pursuant to section 155.30 (8) as a lesser included offense of attempted grand larceny in the third degree. Section 155.30 (8) is not a lesser included offense of section 155.35 “because one may steal property, other than a motor vehicle, worth more than $3,000 without concomitantly committing the crime of grand larceny in the fourth degree under Penal Law § 155.30 (8)” (People v Brown, 259 AD2d 985, 985-986, lv denied 93 NY2d 1014; see generally People v Glover, 57 NY2d 61, 63). Defendant concedes that he failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19), 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]). The verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). Present—Pine, J.P., Wisner, Kehoe, Burns and Lawton, JJ.