| People v Scott |
| 2009 NY Slip Op 02160 [60 AD3d 1396] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Greg A. Scott,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered April 9,2008. The judgment convicted defendant, upon a jury verdict, of grand larceny in the thirddegree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed, and thematter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofthree counts of grand larceny in the third degree (Penal Law § 155.35). Defendant failed tomove for a trial order of dismissal and thus failed to preserve for our review his contention thatthe conviction is not supported by legally sufficient evidence (see People v Gray, 86NY2d 10, 19 [1995]). In any event, that contention is without merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wefurther conclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). "The inconsistencies between the testimony of [the prosecution]witness[es] and the testimony of defendant's witnesses involved credibility issues that wereresolved by the jury, and we accord great deference to the jury's credibility determinations"(People v Harris, 56 AD3d 1267, 1268 [2008]; see People v Lawrence, 28 AD3d1123, 1124 [2006], lv denied 6 NY3d 896 [2006]).
Defendant consented to the supplemental instruction given by County Court in response tothe jury's note concerning the claim of right defense and thus has waived his present challenge tothe instruction (see People v Bush, 57 AD3d 1119, 1120 [2008]; see generally Peoplev Barner, 30 AD3d 1091 [2006], lv denied 7 NY3d 809 [2006]; People vHicks, 12 AD3d 1044 [2004], lv denied 4 NY3d 799 [2005]). Defendant's furthercontention that the court failed to enforce a judicial subpoena is without merit. "[D]efendantfailed to put forth a factual predicate to support the contention that the documents sought in thesubpoena will bear relevant and exculpatory evidence" (People v Bagley, 279 AD2d 426,426 [2001], lv denied 96 NY2d 711 [2001]; see Matter of Constantine v Leto,157 AD2d 376 [1990], affd for reasons stated 77 NY2d 975 [1991]; see generallyPeople v Gissendanner, 48 NY2d 543, 550-551 [1979]). To the extent that defendant may bedeemed to contend that the court erred in failing to enforce an additional subpoena, thatcontention is based upon matters outside the [*2]record on appealand thus must be raised by way of a motion pursuant to CPL article 440 (see generallyPeople v Carlisle, 50 AD3d 1451 [2008], lv denied 10 NY3d 957 [2008]; Peoplev Kopp, 33 AD3d 153, 159 [2006], lv denied 7 NY3d 849 [2006], certdenied 549 US 1227 [2007]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Centra, Fahey and Pine, JJ.