
    The People of the State of New York, Respondent, v Jose Ortiz, Appellant.
    [709 NYS2d 395]
   —Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered June 19, 1998, convicting defendant, after a jury trial, of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 13/4 to SVa years and 1 year, unanimously affirmed.

The verdict was not against the weight of the evidence. The testimony fully supported the inference that defendant took the property from the complainant’s backpack, and there was no evidence supporting a theory that defendant found the property after it accidentally fell out of the backpack.

The court properly declined to submit to the jury the lesser included offense of petit larceny. Without resort to speculation, the jury would have had no basis upon which to convict defendant of petit larceny but not grand larceny. Concur — Tom, J. P., Ellerin, Lerner, Andrias and Saxe, JJ.  