Opinion
December 20, 1989
Appeal from the Steuben County Court, Scudder, J.
Present — Dillon, P.J., Boomer, Green, Pine and Balio, JJ.
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 N.Y.2d 982; People v Tucker, 130 A.D.2d 605; see also, United States v Barlow, 470 F.2d 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 N.Y.2d 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; People v Whalen, 99 A.D.2d 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 A.D.2d 983, affd 74 N.Y.2d 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.