| People v King |
| 2011 NY Slip Op 09424 [90 AD3d 1533] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jerred King,Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedMay 6, 2008. The judgment convicted defendant, upon a jury verdict, of grand larceny in thefourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of grandlarceny in the fourth degree (Penal Law § 155.30 [4]), defendant contends that theevidence is legally insufficient to establish that he stole the victim's wallet that contained, interalia, a debit card. We reject that contention. According to the evidence presented at trial, thewallet was stolen from the victim at a convenience store, where she was working as a cashier.There was overwhelming evidence presented at trial that defendant entered the store shortlybefore the victim discovered that her wallet was missing from her purse, and surveillance videosfrom inside the store showed defendant walking to the side counter where the purse was locatedand reaching inside the purse. Although the wallet is not visible from the surveillance videos, weconclude that the evidence, when viewed in the light most favorable to the People (see Peoplev Contes, 60 NY2d 620, 621 [1983]), provides "a valid line of reasoning and permissibleinferences from which a rational jury" could have concluded that defendant took the wallet andthus committed the crime charged (People v Steinberg, 79 NY2d 673, 682 [1992]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition, viewing the evidence inlight of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495).
Defendant's contention that he was deprived of effective assistance of counsel by defensecounsel's failure to call certain persons as alibi witnesses at trial is based on matters outside therecord on appeal, and thus the proper procedural vehicle for raising that contention is by way of amotion pursuant to CPL 440.10 (see People v Green, 277 AD2d 970 [2000], lvdenied 96 NY2d 759 [2001]). Given defendant's lengthy criminal record and his failure toaccept responsibility for his criminal conduct, we conclude that the sentence is neither undulyharsh nor severe. Finally, defendant failed to preserve for our review his contention that CountyCourt erred in failing to obtain an updated presentence report before imposing sentence (see People v Carey, 86 AD3d 925[2011], lv [*2]denied 17 NY3d 814 [2011]; People v Obbagy, 56 AD3d 1223[2008], lv denied 11 NY3d 928 [2009]), and in any event that contention is mootinasmuch as defendant has already served his sentence. Present—Smith, J.P., Peradotto,Lindley, Green and Martoche, JJ.