Opinion
April 23, 1996
Appeal from the Supreme Court, New York County (Edward Sheridan, J.).
Defendant's guilt was proven by legally sufficient evidence that he overcame the resistance of a store employee to his retention of merchandise that he was stealing from the store before the codefendant interceded with a greater force that caused the employee severe injury. The weight of the evidence does not support defendant's claim that he had dropped all the merchandise he had taken when the employee grabbed his wrists, and was merely protecting himself when he pushed back. Rather, the evidence shows that defendant and the codefendant entered the store together, separating while defendant took various items and put them inside his jacket; that the co-defendant immediately came to defendant's aid in the latter's altercation with the employee; that defendant facilitated the codefendant's attack on the employee; and that defendant and the codefendant left the store together. Nor was there any reasonable view of the evidence to support defendant's request for a charge of petit larceny as a lesser included offense, especially given defendant's testimony at trial denying any form of larceny whatsoever ( see, People v Ruiz, 216 A.D.2d 63, lv granted 86 N.Y.2d 805). We perceive no abuse of sentencing discretion in view of defendant's criminal history and the violent nature of the instant crime.
Concur — Murphy, P.J., Sullivan, Ellerin, Nardelli and Mazzarelli, JJ.