| People v Truesdale |
| 2007 NY Slip Op 08096 [44 AD3d 971] |
| October 23, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MalikTruesdale, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Anne Champion of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered June 29, 2005, convicting him of grand larceny in the fourth degree,criminal possession of stolen property in the fifth degree, possession of burglar's tools, andjostling (three counts), upon a jury verdict, and sentencing him as a persistent felony offender toan indeterminate term of incarceration of 15 years to life on the count of grand larceny in thefourth degree, a determinate term of incarceration of one year on the count of criminal possessionof stolen property in the fifth degree, a determinate term of incarceration of one year on the countof possession of burglar's tools, and determinate terms of incarceration of one year on each of thethree counts of jostling, all to run concurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the defendant's adjudication as a persistent felony offender, and reducing the defendant'sterm of imprisonment for grand larceny in the fourth degree from an indeterminate term ofimprisonment of 15 years to life to an indeterminate term of imprisonment of 2 to 4 years as asecond felony offender; as so modified, the judgment is affirmed.
The defendant was convicted of grand larceny in the fourth degree based on evidence that hetook the sum of $22 out of the pocket of an elderly man. He was also convicted of possession ofstolen property in the fifth degree, jostling (three counts), and of possession of burglar's tools, towit, the sweatshirt which he used to cover his hand while pickpocketing.[*2]
Prior to trial, the trial court ruled, after a hearing, that todemonstrate the defendant's intent and the absence of mistake or accident, the People couldintroduce evidence that the defendant previously had been arrested by the same officers whoarrested him for the instant crimes, on another occasion when he used a sweatshirt to cover hishand while pickpocketing. Under the circumstances of this case, the evidence of the defendant'sprior crime and his modus operandi on the prior occasion was properly admitted, with limitinginstructions, to show intent (see People v Alvino, 71 NY2d 233 [1987]; People v Bailey, 21 AD3d 383,384 [2005]).
With respect to the adjudication of the defendant as a persistent felony offender, the courtbased that adjudication solely upon the defendant's criminal record of misdemeanors andlow-level felonies involving primarily pickpocketing offenses. In response, the defendantpresented evidence of his good character. In light of the specific nature of the defendant'scriminal history and the totality of the evidence adduced at the hearing, the persistent felonyoffender adjudication should be vacated. Accordingly, the defendant should be sentenced forgrand larceny in the fourth degree—a class E felony—to an indeterminate term ofimprisonment of two to four years, which is the maximum permissible sentence for a secondfelony offender convicted of that crime (see Penal Law § 70.06 [3] [e]; Peoplev Williams, 239 AD2d 269 [1997]).
In light of our determination, the defendant's challenge to the constitutionality of thepersistent felony offender statute has been rendered academic. The defendant's remainingcontention is without merit. Miller, J.P., Goldstein, Skelos and Balkin, JJ., concur.