        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1329
KA 08-01384
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JERRED KING, DEFENDANT-APPELLANT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC., CONFLICT DEFENDERS,
WARSAW (ANNA JOST OF COUNSEL), FOR DEFENDANT-APPELLANT.

THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Dennis S.
Cohen, J.), rendered May 6, 2008. The judgment convicted defendant,
upon a jury verdict, of grand larceny in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of grand larceny in the fourth degree (Penal Law § 155.30
[4]), defendant contends that the evidence is legally insufficient to
establish that he stole the victim’s wallet that contained, inter
alia, a debit card. We reject that contention. According to the
evidence presented at trial, the wallet was stolen from the victim at
a convenience store, where she was working as a cashier. There was
overwhelming evidence presented at trial that defendant entered the
store shortly before the victim discovered that her wallet was missing
from her purse, and surveillance videos from inside the store showed
defendant walking to the side counter where the purse was located and
reaching inside the purse. Although the wallet is not visible from
the surveillance videos, we conclude that the evidence, when viewed in
the light most favorable to the People (see People v Contes, 60 NY2d
620, 621), provides “a valid line of reasoning and permissible
inferences from which a rational jury” could have concluded that
defendant took the wallet and thus committed the crime charged (People
v Steinberg, 79 NY2d 673, 682; see generally People v Bleakley, 69
NY2d 490, 495). In addition, viewing the evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we conclude that the verdict is not against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495).

     Defendant’s contention that he was deprived of effective
assistance of counsel by defense counsel’s failure to call certain
                                 -2-                          1329
                                                         KA 08-01384

persons as alibi witnesses at trial is based on matters outside the
record on appeal, and thus the proper procedural vehicle for raising
that contention is by way of a motion pursuant to CPL 440.10 (see
People v Green, 277 AD2d 970, lv denied 96 NY2d 759). Given
defendant’s lengthy criminal record and his failure to accept
responsibility for his criminal conduct, we conclude that the sentence
is neither unduly harsh nor severe. Finally, defendant failed to
preserve for our review his contention that County Court erred in
failing to obtain an updated presentence report before imposing
sentence (see People v Carey, 86 AD3d 925, lv denied 17 NY3d 814;
People v Obbagy, 56 AD3d 1223, lv denied 11 NY3d 928), and in any
event that contention is moot inasmuch as defendant has already served
his sentence.




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
