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

The PEOPLE of the State of New York, Respondent, v. James CROOKS, Defendant-Appellant.

Decided: May 31, 2007

SAXE, J.P., SULLIVAN, GONZALEZ, CATTERSON, KAVANAGH, JJ. Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered April 5, 2006, convicting defendant, after a nonjury trial, of petit larceny and criminal possession of stolen property in the fifth degree, and sentencing him to concurrent terms of 1 year, unanimously affirmed.

Although the People had requested that the larceny and stolen property counts be dismissed, and sought to proceed to trial only on the burglary count, defendant objected to the dismissal of these counts.   While the court did initially dismiss the counts, it was without prejudice to defendant seeking to have them reinstated as lesser included offenses following the presentation of evidence.   At the close of evidence, defendant sought, over the People's objection, to have these counts reinstated and considered by the court, despite the fact that they are not lesser included offenses of burglary.   Under these circumstances, defendant has failed to preserve, and has affirmatively waived (see People v. Ford, 62 N.Y.2d 275, 476 N.Y.S.2d 783, 465 N.E.2d 322 [1984] ), his instant argument that the court improperly considered these counts, and that the People should have been held to the theory they chose.   Review in the interest of justice would be inappropriate (see People v. Rodriguez, 4 A.D.3d 300, 301, 771 N.Y.S.2d 668 [2004], lv. denied 2 N.Y.3d 805, 781 N.Y.S.2d 305, 814 N.E.2d 477 [2004] ).  “At the very least, public policy demands that such a convolution in reasoning cannot be used to overturn a verdict by rewarding a party for encouraging a court to decide wrongly in his favor” (People v. Aezah, 191 A.D.2d 312, 313, 595 N.Y.S.2d 177 [1993], lv. denied 81 N.Y.2d 1010, 600 N.Y.S.2d 198, 616 N.E.2d 855 [1993] ).