People v. Nicholas — 44 A.D.3d 1075

Majority

p. 1075

The People of the State of New York, Respondent, v Danny Nicholas, Appellant.

[844 NYS2d 395]

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered February 27, 2006, convicting him of scheme to defraud in the first degree and grand larceny in the third degree (three counts), after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 , 19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of grand larceny in the third degree (see Penal Law § 20.00; People v Carr-El, 287 AD2d 731 , 733 [2001], affd 99 NY2d 546 [2002]; People v Perez, 16 AD3d 191 [2005]) and scheme to defraud in the first degree (see People v First Meridian Planning Corp., 86 NY2d 608 , 618 [1995]; People v Houghtaling, 14 AD3d 879 , 881 [2005]; People v Bastian, 294 AD2d 882 , 883 [2002]; CPL 190.65 [1] [b]) beyond a reasonable doubt. Further, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the

p. 1076

verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 , 644-645 [2006]).

Additionally, defense counsel provided meaningful representation (see People v Henry, 95 NY2d 563 , 565-566 [2000]; People v Benevento, 91 NY2d 708 [1998]; see also People v Moreno, 70 NY2d 403 , 406 [1987]; People v Cheswick, 166 AD2d 88 , 92 [1991], affd 78 NY2d 1119 [1991]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). We note that the defendant erroneously asserts that the terms of imprisonment imposed on his larceny convictions were ordered to run consecutively with the term of imprisonment imposed on his conviction of scheme to defraud. In fact, the terms of imprisonment were properly ordered to run concurrently. Miller, J.P., Ritter, Covello and McCarthy, JJ., concur.

Cases cited

People v. Gray 86 NY2d 10 N.Y. 1995-05-11 at 19 p. 1075
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 1075
People v. Carr-El 287 AD2d 731 N.Y. App. Div. 2001-10-29 at 733 p. 1075
People v. Carr-El 99 NY2d 546 N.Y. 2002-12-17 p. 1075
People v. Perez 16 AD3d 191 N.Y. App. Div. 2005-03-10 p. 1075
People v. First Meridian Planning Corp. 86 NY2d 608 N.Y. 1995-11-02 at 618 p. 1075
People v. Houghtaling 14 AD3d 879 N.Y. App. Div. 2005-01-20 at 881 p. 1075
People v. Bastian 294 AD2d 882 N.Y. App. Div. 2002-05-03 at 883 p. 1075
People v. Romero 7 NY3d 633 N.Y. 2006-11-21 at 644-645 p. 1076
People v. Henry 95 NY2d 563 N.Y. 2000-12-21 at 565-566 p. 1076
People v. Benevento 91 NY2d 708 N.Y. 1998-06-11 p. 1076
People v. Moreno 70 NY2d 403 N.Y. 1987-11-19 at 406 p. 1076
People v. Cheswick 166 AD2d 88 N.Y. App. Div. 1991-05-20 at 92 p. 1076
People v. Cheswick 78 NY2d 1119 N.Y. 1991-11-26 p. 1076
People v. Suitte 90 AD2d 80 N.Y. App. Div. 1982-11-22 p. 1076