PEOPLE v. WARR

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

The PEOPLE of the State of New York, Respondent, v. Bryan A. WARR, Appellant.

Decided: July 23, 2009

Before:  SPAIN, J.P., KANE, MALONE JR., KAVANAGH and McCARTHY, JJ. Marie B. Beckford, Albany, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered May 15, 2008, convicting defendant following a nonjury trial of the crime of grand larceny in the fourth degree.

Defendant was indicted on one count of grand larceny in the fourth degree stemming from allegations that he stole money from a cashier at a Broome County fast food restaurant.   Following a nonjury trial, he was found guilty as charged.   He now appeals.   We affirm.

We reject defendant's contentions that his conviction is unsupported by legally sufficient evidence and that the verdict is against the weight of the evidence.   The cashier testified that defendant gave her a $100 bill to pay for a food order that cost slightly over a dollar.   As she was in the process of making the appropriate change, defendant first requested that it be given in $20 bills and then requested that it be given in $10 bills.   She began to comply with this second request only to discover that her register did not contain enough $10 bills.   He then requested $5 bills.   A coworker sensed a problem and called for a manager.   At this time, the cashier-armed with defendant's original $100 bill in one hand and the change that she had started to make in the other hand-told defendant that he would have to wait for the manager.   Defendant then quickly took the money from both hands and exited the restaurant.   He ran to his car and drove out of the parking lot in such a fashion that sparks flew from his vehicle.   In testifying on his own behalf, defendant claimed that he tricked the cashier into giving him the wrong change that day, a scam that he has perpetrated on countless occasions.

Viewing the trial evidence in the light most favorable to the People, it was legally sufficient to establish defendant's guilt of grand larceny in the fourth degree (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   In sum, the credible evidence established that defendant took money from the cashier that did not belong to him and hence stole property, regardless of its nature and value, from another (see Penal Law §§ 155.30[5];  People v. Williams, 45 A.D.3d 1413, 1413-1414, 844 N.Y.S.2d 821 [2007], lv. denied 9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212 [2008];  People v. Colon, 24 A.D.3d 1114, 1115, 805 N.Y.S.2d 744 [2005], lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 450, 845 N.E.2d 1281 [2006];  People v. Sumter, 173 A.D.2d 659, 659-660, 570 N.Y.S.2d 233 [1991], lv. denied 78 N.Y.2d 975, 574 N.Y.S.2d 955, 580 N.E.2d 427 [1991];  People v. Stafford, 173 A.D.2d 233, 234, 569 N.Y.S.2d 441 [1991];  People v. Jones, 162 A.D.2d 151, 151-152, 556 N.Y.S.2d 91 [1990], lv. denied 76 N.Y.2d 859, 560 N.Y.S.2d 999, 561 N.E.2d 899 [1990];  see generally Matter of Nikkia C., 187 A.D.2d 581, 582, 590 N.Y.S.2d 129 [1992] ).   Likewise, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see People v. Sumter, 173 A.D.2d at 660, 570 N.Y.S.2d 233;  People v. Jones, 162 A.D.2d at 151-152, 556 N.Y.S.2d 91;  see also CPL 470.15[5] ).

Upon our review of the record, we are satisfied that defendant was afforded meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).   Moreover, his claim that the People failed to provide CPL 710.30 notice of the show-up identification by the cashier is unpreserved for review (see CPL 470.05[2] ).   His remaining contentions have been reviewed and found to be without merit.

ORDERED that the judgment is affirmed.

McCARTHY, J.

SPAIN, J.P., KANE, MALONE JR. and KAVANAGH, JJ., concur.

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