PEOPLE v. WILLIAMS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Richard Jeffrey WILLIAMS, Defendant-Appellant.

Decided: May 14, 1998

Before LERNER, P.J., and ELLERIN, RUBIN and SAXE, JJ. Kristin A. D'Amico, for respondent. Laura Lieberman Cohen, for defendant-appellant.

Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered July 24, 1995, convicting defendant, after a jury trial, of grand larceny in the third degree and attempted grand larceny in the third degree, and sentencing him to a term of 5 years probation, to pay restitution in the amount of $9,257 and to perform 50 hours of community service on the grand larceny in the third degree conviction and to a concurrent term of 5 years probation on the attempted grand larceny in the third degree conviction, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's intent to steal was established by the payroll transmittal sheets, which, when cross-checked with the route forms, showed that defendant substantially inflated the number and type of deliveries made by three drivers and that he paid these drivers for deliveries purportedly made on their days off;  and by an agreement defendant had with the owner of one of the vans in question, who was defendant's mother's fiance, to receive payment in exchange for providing business to the owner.   The jury had ample basis upon which to reject defendant's incredible explanation of his conduct (see, People v. Lehrman, 200 A.D.2d 540, 606 N.Y.S.2d 701, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 387, 634 N.E.2d 988).

 Defendant's contention that the court erred by failing to provide a circumstantial evidence charge to the jury is unpreserved for appellate review (see, People v. Baez, 183 A.D.2d 481, 583 N.Y.S.2d 404, lv. denied 80 N.Y.2d 901, 588 N.Y.S.2d 826, 602 N.E.2d 234), and we decline to review it in the interest of justice.   Were we to review it, we would find that a circumstantial evidence charge was not required since defendant's guilt was based on both direct and circumstantial evidence (see, People v. Roldan, 88 N.Y.2d 826, 827, 643 N.Y.S.2d 960, 666 N.E.2d 553;  People v. Von Werne, 41 N.Y.2d 584, 590, 394 N.Y.S.2d 183, 362 N.E.2d 982).

MEMORANDUM DECISION.