| People v Shortell |
| 2019 NY Slip Op 04789 [173 AD3d 1364] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Richard Shortell, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Clinton County (Lawliss, J.),rendered January 16, 2018, upon a verdict convicting defendant of the crimes of grand larceny inthe third degree, criminal possession of stolen property in the third degree, aggravated drivingwhile intoxicated and driving while intoxicated, and the traffic infractions of refusal to submit tobreath screening, operating a motor vehicle without an inspection certificate, operating anunregistered vehicle and license plate display violation.
In 2017, defendant, while intoxicated, took a truck from his employer and drove it into aditch. In connection with this incident, defendant was charged by indictment with multiplecrimes. Following a jury trial, defendant was convicted of, as relevant here, grand larceny in thethird degree and criminal possession of stolen property in the third degree. County Courtthereafter sentenced defendant, as a second felony offender, to various concurrent prison terms.Defendant appeals. We affirm.
Defendant argues that the verdict with respect to the convictions for grand larceny in thethird degree and criminal possession of stolen property in the third degree should be reversedbecause he was too intoxicated to form the requisite intent to commit these crimes. Althoughdefendant does not specify whether he is arguing that the verdict as to these counts was notsupported by legally sufficient evidence or was against the weight of the evidence, under eitherstandard of review, defendant's claim is without merit. "Larcenous intent is rarely susceptible ofproof by direct evidence, and must usually be inferred from the circumstances surrounding thedefendant's actions" (People vPhoenix, 115 AD3d 1058, 1060 [2014] [internal quotation marks, ellipsis and citationsomitted], lv denied 23 NY3d 1024 [2014]). "Intoxication may be considered by the trierof facts as [negating] the intent required for the conviction of a crime" (People v Handly,102 AD2d 922, 923 [1984] [citations omitted]; see People v Mould, 143 AD3d 1186, 1187 [2016], lvdenied 28 NY3d 1187 [2017]).
A witness testified at trial that she observed a truck partially in a ditch and partially blockingthe roadway. The witness testified that defendant was in the truck, that she smelled alcohol on hisbreath and that he was stumbling and slurring his speech. The witness engaged defendant in aconversation to prevent him from driving away and testified that defendant told her that he hadstolen the truck from his employer. A state trooper who responded to the scene testified thatdefendant told him that he had been drinking vodka and that he "took his boss's truck without hispermission."
Defendant's employer stated that he had offered defendant a job at his professional detailingbusiness. Prior to one weekend,[FN1] the employer asked defendant to detail a boatand remove the push bar of a truck that was owned by a client. The employer testified that whenhe returned to the office after the weekend, defendant was on a couch drunk and the assignedwork had not been completed. The employer fired defendant and testified, "It didn't end nicely."After the following weekend, the employer came into the office and noticed cigarette butts andtobacco[FN2] by the couchand that the truck was missing. The employer spoke with the truck's owner, who confirmed thathe did not take the truck from the employer's shop. The employer subsequently learned that thetruck had been impounded and defendant had been arrested.
Viewing the evidence in the light most favorable to the People, the jury could rationally inferthat defendant, despite being discovered in an intoxicated state, had the intent to commit thechallenged crimes (see People v Welsh, 124 AD2d 301, 303 [1986]). In this regard, theevidence establishes that defendant took the truck from the business of his employer, who hadjust fired him, and that defendant admitted to two separate witnesses that he had stolen the truckfrom his employer. Furthermore, although a contrary result would not have been unreasonable,viewing the evidence in a neutral light, we find that the verdict was not against the weight of theevidence (see People v Allen, 132AD3d 1156, 1158 [2015], lv denied 26 NY3d 1107 [2016]; People v Shuler, 100 AD3d 1041,1042-1043 [2012], lv denied 20 NY3d 988 [2012]; People v Scott, 47 AD3d 1016, 1018-1019 [2008], lvdenied 10 NY3d 870 [2008]; Peoplev Porter, 35 AD3d 907, 909 [2006], lv denied 8 NY3d 926 [2007]).
Finally, we reject defendant's assertion that he received the ineffective assistance of counseldue to his counsel's failure to request an intoxication charge (see People v Duffy, 119 AD3d 1231, 1234 [2014], lvdenied 24 NY3d 1043 [2014]). To the extent that defendant argues that his counsel failed toadvise him of the viability of a possible intoxication defense, such claim is premised uponmatters outside the record and, therefore, is more appropriately suited for a motion under CPLarticle 440 (see People v Brown,115 AD3d 1115, 1116 [2014], lv denied 24 NY3d 959 [2014]; People v McCray, 96 AD3d 1160,1161 [2012], lv denied 19 NY3d 1104 [2012]).
Lynch, J.P., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The employer served weekendsat the Clinton County jail for a child support violation.
Footnote 2:The employer testified thatdefendant rolled his own cigarettes.