PEOPLE v. SCOTT (2009)

 Defendant appeals from a judgment convicting him, following a jury trial, of three counts of grand larceny in the third degree (Penal Law § 155.35).   Defendant failed to move for a trial order of dismissal and thus 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, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “ The inconsistencies between the testimony of [the prosecution] witness[es] and the testimony of defendant's witnesses involved credibility issues that were resolved by the jury, and we accord great deference to the jury's credibility determinations” (People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448;  see People v. Lawrence, 28 A.D.3d 1123, 1124, 813 N.Y.S.2d 834, lv. denied 6 N.Y.3d 896, 817 N.Y.S.2d 631, 850 N.E.2d 678).

 Defendant consented to the supplemental instruction given by County Court in response to the jury's note concerning the claim of right defense and thus has waived his present challenge to the instruction (see People v. Bush, 57 A.D.3d 1119, 1120, 868 N.Y.S.2d 419;  see generally People v. Barner, 30 A.D.3d 1091, 815 N.Y.S.2d 862, lv. denied 7 N.Y.3d 809, 822 N.Y.S.2d 484, 855 N.E.2d 800;  People v. Hicks, 12 A.D.3d 1044, 784 N.Y.S.2d 451, lv. denied 4 N.Y.3d 799, 795 N.Y.S.2d 174, 828 N.E.2d 90).   Defendant's further contention that the court failed to enforce a judicial subpoena is without merit.  “[D]efendant failed to put forth a factual predicate to support the contention that the documents sought in the subpoena will bear relevant and exculpatory evidence” (People v. Bagley, 279 A.D.2d 426, 426, 720 N.Y.S.2d 454, lv. denied 96 N.Y.2d 711, 727 N.Y.S.2d 696, 751 N.E.2d 944;  see Matter of Constantine v. Leto, 157 A.D.2d 376, 557 N.Y.S.2d 611, affd. for reasons stated 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392;  see generally People v. Gissendanner, 48 N.Y.2d 543, 550-551, 423 N.Y.S.2d 893, 399 N.E.2d 924).   To the extent that defendant may be deemed to contend that the court erred in failing to enforce an additional subpoena, that contention is based upon matters outside the record on appeal and thus must be raised by way of a motion pursuant to CPL article 440 (see generally People v. Carlisle, 50 A.D.3d 1451, 856 N.Y.S.2d 410, lv. denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447;  People v. Kopp, 33 A.D.3d 153, 159, 817 N.Y.S.2d 806, lv. denied 7 N.Y.3d 849, 823 N.Y.S.2d 779, 857 N.E.2d 74, cert. denied 549 U.S. 1227, 127 S.Ct. 1296, 167 L.Ed.2d 112).

Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed, and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50(5).

MEMORANDUM: