People v Crooks

People v Crooks 2007 NY Slip Op 04570 [40 AD3d 542] May 31, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

The People of the State of New York, Respondent,
v
James Crooks, Appellant.

—[*1] Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered April 5, 2006, convicting defendant, after a nonjury trial, of petit larceny and criminal possession of stolen property in the fifth degree, and sentencing him to concurrent terms of one year, unanimously affirmed.

Although the People had requested that the larceny and stolen property counts be dismissed, and sought to proceed to trial only on the burglary count, defendant objected to the dismissal of these counts. While the court did initially dismiss the counts, it was without prejudice to defendant seeking to have them reinstated as lesser included offenses following the presentation of evidence. At the close of evidence, defendant sought, over the People's objection, to have these counts reinstated and considered by the court, despite the fact that they are not lesser included offenses of burglary. Under these circumstances, defendant has failed to preserve, and has affirmatively waived (see People v Ford, 62 NY2d 275 [1984]), his instant argument that the court improperly considered these counts, and that the People should have been held to the theory they chose. Review in the interest of justice would be inappropriate (see People v Rodriguez, 4 AD3d 300, 301 [2004], lv denied 2 NY3d 805 [2004]). "At the very least, public policy demands that such a convolution in reasoning cannot be used to overturn a verdict [*2]by rewarding a party for encouraging a court to decide wrongly in his favor" (People v Aezah, 191 AD2d 312, 313 [1993], lv denied 81 NY2d 1010 [1993]). Concur—Saxe, J.P., Sullivan, Gonzalez, Catterson and Kavanagh, JJ.