PEOPLE v. ADAMS (1999)

 On appeal from a judgment convicting him after a jury trial of grand larceny in the fourth degree (Penal Law § 155.30[6] ), defendant contends that County Court erred in submitting grand larceny in the fourth degree (larceny by extortion) (Penal Law § 155.30[6] ) as a lesser included offense of robbery in the third degree (Penal Law § 160.05).   Although defendant is correct that larceny by extortion is not a lesser included offense of robbery (see, People v. Koh, 225 A.D.2d 476, 639 N.Y.S.2d 800, lv. denied 88 N.Y.2d 997, 649 N.Y.S.2d 404, 672 N.E.2d 630), defendant withdrew his initial objection to the charge.   Thus, “by acquiescing in * * * [the] lesser charge[, defendant] waived his right to complain of the trial court's error” (People v. Ford, 62 N.Y.2d 275, 283, 476 N.Y.S.2d 783, 465 N.E.2d 322).  Defendant's contention that the court's preliminary instructions were defective (see, CPL 270.40) is not preserved for our review (see, CPL 470.05 [2];  see also, People v. Giddens, 202 A.D.2d 976, 609 N.Y.S.2d 736, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).  Defendant also failed to preserve for our review his contention regarding the presentence investigation report (see, People v. Moon, 225 A.D.2d 826, 827-828, 639 N.Y.S.2d 155, lv. denied 88 N.Y.2d 939, 647 N.Y.S.2d 172, 670 N.E.2d 456).

Judgment unanimously affirmed.

MEMORANDUM: