People v McMillan

People v McMillan 2011 NY Slip Op 08992 Decided on December 13, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2011
Mazzarelli, J.P., Andrias, Renwick, Freedman, Manzanet-Daniels, JJ.
6327 5935/07

[*1]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.

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 NY3d 342, 348-349 [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 NY2d 10, 20) by alerting the People to elicit additional proof of the nature of the card.

We have considered and rejected defendant's pro se claims.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2011

CLERK