Opinion
May 14, 1998
Appeal from the Supreme Court, New York County (Mary McGowan Davis, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( People v. Bleakley, 69 N.Y.2d 490). Defendant's intent to steal was established by the payroll transmittal sheets, which, when cross-checked with the route forms, showed that defendant substantially inflated the number and type of deliveries made by three drivers and that he paid these drivers for deliveries purportedly made on their days off; and by an agreement defendant had with the owner of one of the vans in question, who was defendant's mother's fiancé, to receive payment in exchange for providing business to the owner. The jury had ample basis upon which to reject defendant's incredible explanation of his conduct ( see, People v. Lehrman, 200 A.D.2d 540, lv denied 83 N.Y.2d 855).
Defendant's contention that the court erred by failing to provide a circumstantial evidence charge to the jury is unpreserved for appellate review ( see, People v. Baez, 183 A.D.2d 481, lv denied 80 N.Y.2d 901), and we decline to review it in the interest of justice. Were we to review it, we would find that a circumstantial evidence charge was not required since defendant's guilt was based on both direct and circumstantial evidence ( see, People v. Roldan, 88 N.Y.2d 826, 827; People v. Von Werne, 41 N.Y.2d 584, 590).
Concur — Lerner, P. J., Ellerin, Rubin and Saxe, JJ.