PEOPLE v. DELEON (2018)

Judgment, Supreme Court, New York County (Patricia M. Nuñez, J.), rendered January 31, 2014, as amended May 1 and 15, 2014, convicting defendant, after a jury trial, of robbery in the third degree and two counts of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 31/212 to 7 years, unanimously affirmed.

Defendant's argument that the victim's recorded 911 call contained inadmissible hearsay is unpreserved and expressly waived, and we decline to review it in the interest of justice.  As an alternative holding, we find no basis for reversal.  Counsel never objected to the admission of the 911 call and thus the court was never called upon to make any findings as to its admissibility.  In any event, any error in admitting this recording was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

Defendant's claim that his conviction of the grand larceny of a credit card was against the weight of the evidence is unavailing.  We are “constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant” (People v. Cooper, 88 N.Y.2d 1056, 1058, 651 N.Y.S.2d 7, 673 N.E.2d 1234 [1996] ), and defendant's assertion that this principle applies only where there has been a change in the law pending appeal is without merit (see e.g. People v. Lewis, 102 A.D.3d 505, 506, 958 N.Y.S.2d 348 [1st Dept. 2013], affd 23 N.Y.3d 179, 989 N.Y.S.2d 661, 12 N.E.3d 1091 [2014] ).  Under the court's charge, to which there was no objection, the jury could have reasonably found that defendant stole a “credit card” (Penal Law 155.30[4] ).

We perceive no basis for reducing the sentence.