| People v Abbott |
| 2013 NY Slip Op 04370 [107 AD3d 1152] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Roselyn Abbott, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered November 23, 2010, upon a verdict convicting defendant of the crimes ofgrand larceny in the fourth degree and fraudulent accosting.
On the afternoon of December 6, 2009, defendant was the front-seat passenger in avehicle operated by her son, Kevin Gervasio; also present in the vehicle was defendant'ssister and Gervasio's girlfriend. The quartet, some combination of whom had beendrinking beer and/or smoking marihuana, proceeded to a supermarket in the Village ofMenands, Albany County—ostensibly so that defendant's sister could make apurchase. While there, defendant and Gervasio observed an 89-year-old woman(hereinafter the victim) pull in and park in the handicapped portion of the parking lot.The victim, who was there to purchase a newspaper, entered the store, whereuponGervasio pulled alongside the victim's car and spilled coffee underneathit—creating the appearance that fluid was leaking from the vehicle. Gervasio thenrepositioned his vehicle so that he and defendant were parked directly across from thevictim's car.
When the victim returned, defendant approached her and said, "I'm concernedbecause I think something is wrong with your car. There is oil underneath the engine."After theorizing that the suspected problem could involve the brakes, defendantvolunteered Gervasio's services, stating, "My son is a mechanic and he's over in the otherend of the parking lot and he can come [*2]over and takea look." The victim acquiesced and defendant signaled Gervasio, who—upon"inspecting" the victim's vehicle—stated, "Oh, boy. Your master cylinders don'tlook good. . . . You probably won't have brakes." When the victimindicated that she would take the vehicle to a nearby gas station for service, Gervasioreplied, "They're crooks. I used to work there. . . . I can fix it." The victimagreed to allow Gervasio to service her car, and he and defendant followed the victimhome.
Upon arriving at the victim's house, Gervasio purported to call around to localautomotive stores in search of the parts needed to repair the vehicle. Once these callswere completed, Gervasio told the victim that he could fix her car but that he would needa down payment. The victim gave Gervasio all the cash she had onhand—approximately $375—and gave defendant $20 just "because [she]liked her." Gervasio and defendant then departed with the victim's car. The followingday, Gervasio called the victim and indicated that the car was fixed but that he wouldneed an additional $1,000 to cover the cost of the repairs.[FN1] Gervasio and defendant then followed the victim to her bank and waited while shewithdrew the requested funds. Ultimately, Gervasio received approximately $1,400 for"repairing" the victim's vehicle.[FN2]
After the vehicle was returned to her, the victim noticed that one of the dashboardindicator lights, which had been on prior to her encounter with Gervasio and defendant,remained illuminated. The victim contacted Gervasio, who indicated that the fluids hehad replaced needed to "work through" the vehicle and that the light should go off within24 hours. When the light remained on, the victim took her vehicle to a local cardealership, where an inspection revealed fresh fluid on the vehicle frame but no evidenceof any recent repairs.[FN3]After expending in excess of $1,000 for legitimate repairs to her vehicle, the victimcontacted the police.
Defendant thereafter was indicted and charged with grand larceny in the fourthdegree and fraudulent accosting. Following a jury trial, defendant was convicted ascharged and sentenced, as a second felony offender, to 2 to 4 years in prison for thegrand larceny conviction and one year for the fraudulent accosting conviction and wasordered to pay restitution. This appeal by defendant ensued.
We affirm. To the extent that defendant's challenge to the legal sufficiency of the[*3]evidence is preserved for our review (see People v Brabant, 61AD3d 1014, 1015 [2009], lv denied 12 NY3d 851 [2009]), we find it to belacking in merit. Insofar as is relevant here, a person commits grand larceny in the fourthdegree "when, with intent to deprive another of property or to appropriate the same tohimself [or herself] or a third person" (Penal Law § 155.05 [1]), he or she stealsproperty that is valued at more than $1,000 (see Penal Law § 155.30 [1];People v Mallia, 52 AD3d964, 965 [2008]; People v English, 138 AD2d 831, 831 [1988]).Additionally, "[a] person is guilty of fraudulent accosting when he [or she] accosts aperson in a public place with intent to defraud him [or her] of money or other property bymeans of a trick, swindle or confidence game" (Penal Law § 165.30 [1]; seePeople v Bonaparte, 170 AD2d 688, 688 [1991]).
As a starting point, there is no question that the victim was deprived of property inexcess of $1,000. Additionally, although Gervasio attempted to downplay defendant'srole in the charged crimes, he conceded on cross-examination that defendant "knew thiswas a fraudulent scheme." While it is true that Gervasio's testimony—standingalone—is insufficient to sustain defendant's conviction (see CPL 60.22[1]), defendant's written statement to the police, which was read into evidence at trial,makes clear that she was both well aware of and actively participated in the scamperpetrated upon the victim. Indeed, defendant admitted that she saw Gervasio "pour[ ]coffee under the lady's car," that they then "waited for the lady to come out" of thesupermarket and that, upon the victim's return, she approached the victim and "told herthat something was leaking under her car." Additionally, as again evidenced bydefendant's statement and the trial testimony, there is no question that defendantaccompanied Gervasio to the victim's home and to the bank the following day, at whichtimes the actual transfer of funds took place, and the fact that defendant may not havereceived any of the proceeds from the underlying scam neither negates her intent nordiminishes her role in defrauding the victim (see Penal Law § 155.05 [1];People v Hill, 161 AD2d 478, 479 [1990]). Viewing this evidence in the lightmost favorable to the People, we are satisfied that "there is [a] valid line of reasoning andpermissible inferences [that] could lead a rational person to the conclusion reached by thejury" (People v Bleakley, 69 NY2d 490, 495 [1987]; accord People vMallia, 52 AD3d at 966)—namely, that defendant was guilty of grand larcenyin the fourth degree and fraudulent accosting. Accordingly, we are satisfied that the jury'sverdict is supported by legally sufficient evidence.
Finally, we reject defendant's assertion that County Court erred in denying herrequest to charge the jury as to the lesser included offense of petit larceny. For all thereasons previously discussed, we find that there is no reasonable view of the evidencethat would support a finding that defendant committed the lesser offense of petit larcenybut not the greater offense of grand larceny in the fourth degree (see People vPhoenix, 197 AD2d 755, 755-756 [1993], lv denied 82 NY2d 901 [1993];see also People v Bowman,79 AD3d 1368, 1369-1370 [2010], lv denied 16 NY3d 828 [2011];People v Lawrence, 277 AD2d 501, 502-503 [2000]). Defendant's remainingarguments, to the extent not specifically addressed, have been examined and found to belacking in merit.
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Gervasio also indicatedthat the vehicle's inspection was about to expire and requested an additional $25 to coverthe cost of a new inspection sticker.
Footnote 2: According to defendant,she never received any of these proceeds, stating that Gervasio "was a cheap bastard anddidn't give her any money."
Footnote 3: Although Gervasio,who was not an automotive mechanic, subsequently would testify that he did makecertain repairs to the victim's vehicle, he also readily admitted that he charged the victimfor work he did not perform. More to the point, Gervasio acknowledged that he"scammed the [victim] out of money," that such was his intent when he spilled his coffeeunderneath her vehicle and that he had executed similar scams several times before.