People v. Smith

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered November 10, 1998, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of IV2 to 3 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established that the total amount stolen exceeded the statutory threshold of $1,000 for grand larceny in the fourth degree. Even if we were to accept defendant’s argument that another employee could have used defendant’s employee identification number in order to remove cash from the register during a “cash drop,” the evidence that it was defendant who performed each of the thefts was overwhelming. The distinctive modus operand! in every theft was identical to the one used in the thefts that-defendant was videotaped committing. Furthermore, defendant specifically confessed to the additional thefts.

Defendant’s contention that the court erred in failing to charge the jury that it must disregard defendant’s confession if it determined that it was involuntary was not preserved for appellate review, and we decline to review it in the interest of justice. Were we to review this claim, we would find no error, because there was no evidence raising a factual dispute as to the voluntariness of the statement (see, People v Taylor, 135 AD2d 202, 204-205, lv denied 71 NY2d 1034). Concur — Mazzarelli, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.