People v. Barry

Nov 17, 2006
Versions:34 A.D.3d 1258
823 N.Y.S.2d 715

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered April 4, 2005. The judgment convicted defendant, upon a jury verdict, 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: On appeal from a judgment convicting him after a jury trial of grand larceny in the third degree (Penal Law § 155.35), defendant contends that the evidence is legally insufficient to support the conviction. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). “[T]he inference of wrongful intent logically flow[s] from the proven facts,” and there is a “valid line of reasoning [that] could lead a rational trier of fact, viewing the evidence in the light most favorable to the People, to conclude that the defendant committed the charged crime,” i.e., larceny by false promise (People v Norman, 85 NY2d 609, 620 [1995]; see People v Luongo, 47 NY2d 418, 428 [1979]; People v Ruscito, 206 AD2d 841, 841-842 [1994], lv denied 84 NY2d 872 [1994]; see generally Penal Law § 155.05 [2] [d]). Defendant‘s further contention that County Court‘s Sandoval ruling constituted an abuse of discretion is not preserved for our review (see People v Trammell, 28 AD3d 1219 [2006]; People v Laws, 27 AD3d 1116, 1117 [2006], lv denied 7 NY3d 758 [2006]), 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, the sentence is not unduly harsh or severe. Present—Hurlbutt, A.P.J., Scudder, Gorski and Smith, JJ.