People v. Farmer , 1989 N.Y. App. Div. LEXIS 16965 ( 1989 )

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Steuben County Court for resentencing, in accordance with the following memorandum: We reject defendant’s contention that the jury verdict convicting him of larceny was not supported by legally sufficient evidence or was contrary to the weight of evidence. Defendant observed a larceny in progress and, while asportation of the goods was continuing, assisted the perpetrator in completing the larceny (see, People v Robinson, 60 NY2d 982; People v Tucker, 130 AD2d 605; see also, United States v Barlow, 470 F2d 1245). The jury could reasonably have inferred that, by reason of his conduct, defendant had the requisite intent to commit a larceny (see, People v Barnes, 50 NY2d 375, 381). Defendant’s claim that the court erred in failing to instruct the jury on the nature of accessorial conduct is not preserved for our review (see, CPL 470.05 [2]; People v Whalen, 99 AD2d 883, 884), and interest of justice review is not warranted.

The indictment alleged that defendant stole a wallet containing $778. The People concede that at the time of trial, that charge would constitute only a petit larceny (Penal Law § 155.25), not grand larceny in the third degree (Penal Law § 155.35; see, People v Behlog, 142 AD2d 983, affd 74 NY2d 237). Accordingly, we modify the judgment to convict defendant of petit larceny under Penal Law § 155.25, and defendant is remanded to Steuben County Court for resentencing. (Appeal from judgment of Steuben County Court, Scudder, J.— grand larceny, third degree.) Present — Dillon, P. J., Boomer, Green, Pine and Balio, JJ.