Opinion
2011-12-13
The PEOPLE of the State of New York, Respondent, v. Steven McMILLAN, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, RENWICK, FREEDMAN, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Daniel Conviser, J.), rendered October 14, 2008, convicting defendant, after a jury trial, of grand larceny in the fourth degree and criminal possession of stolen property in the fourth and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of two to four years, unanimously affirmed.
Defendant's legal sufficiency argument is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that the verdict was based on legally sufficient evidence. We also find that the verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Defendant challenges the evidence establishing that a stolen item was a credit card as defined by law. However, under the circumstances of the case the jury was entitled to rely on the victim's unchallenged testimony that the item was her credit card. “A sufficiently specific motion might [have] provid[ed] the opportunity for cure” ( People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919) by alerting the People to elicit additional proof of the nature of the card.
We have considered and rejected defendant's pro se claims.