Opinion
KA 00-00384
June 14, 2002.
Appeal from a judgment of Erie County Court (McCarthy, J.), entered February 1, 2000, convicting defendant after a jury trial of, inter alia, burglary in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of burglary in the third degree (Penal Law § 140.20) and attempted grand larceny in the third degree (§§ 110.00, 155.35) arising from his attempted theft of a motor vehicle. Contrary to the contention of defendant, County Court properly denied his request to charge attempted grand larceny in the fourth degree pursuant to section 155.30 (8) as a lesser included offense of attempted grand larceny in the third degree. Section 155.30 (8) is not a lesser included offense of section 155.35 "because one may steal property, other than a motor vehicle, worth more than $3,000 without concomitantly committing the crime of grand larceny in the fourth degree under Penal Law § 155.30 (8)" ( People v. Brown, 259 A.D.2d 985, 985-986, lv denied 93 N.Y.2d 1014; see generally People v. Glover, 57 N.Y.2d 61, 63). Defendant concedes that he failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19), 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 [a]). The verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495).