People v. King

—Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered April 22, 1993, convicting him of grand larceny in the third degree by false pretense, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5).

The defendant contends that there was legally insufficient evidence to support his conviction of grand larceny in the third degree by false pretense based upon the lack of evidence of any false representation made by the defendant. Initially, this argument is unpreserved for appellate review because the defendant failed to raise this specific argument in his motion for a trial order of dismissal (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245 ). In any event, viewing the evidence in a light most favorable to the People (see, People v Contes, 60 NY2d 620 ), we find.that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see, People v Drake, 61 NY2d 359 , 362; People v Churchill, 47 NY2d 151 , 155-156; Penal Law § 155.05 [2] [a]).

The trial court did not improvidently exercise its discretion in refusing to allow a defense witness to testify. The witness’s testimony was irrelevant and collateral to a finding that the defendant committed the charged crime (see, People v Martinez, 177 AD2d 600 ; People v O’Connor, 154 AD2d 626 ).