PEOPLE v. LEE (2008)

Defendant appeals from a judgment convicting him of two counts of grand larceny in the third degree (Penal Law § 155.35), one count of grand larceny in the fourth degree (§ 155.30[1] ), and three counts of criminal mischief in the second degree (§ 145.10).   The charges arose from three incidents in which defendant allegedly stole and damaged trees from three victims.

 Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence by failing to renew his motion for a trial order of dismissal after presenting evidence (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;  People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Griffin, 41 A.D.3d 1285, 1286, 837 N.Y.S.2d 812, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897, 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024).   The verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to the further contention of defendant, Supreme Court properly denied his motion to sever the counts of the indictment with respect to each victim.   The offenses against each victim were joinable under CPL 200.20(2)(b) because evidence of the theft from each victim would be material and admissible as evidence-in-chief with respect to the other two victims and, “once the offenses were properly joined, the court lacked the statutory authority to sever” (People v. Cornell, 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226, lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157;  see People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456;  People v. Fontanez, 278 A.D.2d 933, 934-935, 718 N.Y.S.2d 541, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: