PEOPLE v. NICHOLAS (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered February 27, 2006, convicting him of scheme to defraud in the first degree and grand larceny in the third degree (three counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of grand larceny in the third degree (see Penal Law § 20.00;  People v. Carr-El, 287 A.D.2d 731, 733, 732 N.Y.S.2d 256, affd. 99 N.Y.2d 546, 754 N.Y.S.2d 198, 784 N.E.2d 71;  People v. Perez, 16 A.D.3d 191, 791 N.Y.S.2d 40) and scheme to defraud in the first degree (see People v. First Meridian Planning Corp., 86 N.Y.2d 608, 618, 635 N.Y.S.2d 144, 658 N.E.2d 1017;  People v. Houghtaling, 14 A.D.3d 879, 881, 787 N.Y.S.2d 733;  People v. Bastian, 294 A.D.2d 882, 883, 743 N.Y.S.2d 217;  CPL 190.65[1][b] ) beyond a reasonable doubt.   Further, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Additionally, defense counsel provided meaningful representation (see People v. Henry, 95 N.Y.2d 563, 565-566, 721 N.Y.S.2d 577, 744 N.E.2d 112, cert. denied 547 U.S. 1040, 126 S.Ct. 1622, 164 L.Ed.2d 334;  People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200;  People v. Cheswick, 166 A.D.2d 88, 92, 570 N.Y.S.2d 318, affd. 78 N.Y.2d 1119, 578 N.Y.S.2d 873, 586 N.E.2d 56).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).   We note that the defendant erroneously asserts that the terms of imprisonment imposed on his larceny convictions were ordered to run consecutively with the term of imprisonment imposed on his conviction of scheme to defraud.   In fact, the terms of imprisonment were properly ordered to run concurrently.