| People v Holloway |
| 2007 NY Slip Op 09335 [45 AD3d 477] |
| November 27, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kermit Holloway, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., on suppression motion;Charles J. Tejada, J., at jury trial and sentence), rendered October 24, 2005, convicting defendantof grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a termof 2 to 4 years, unanimously affirmed.
Although the prosecutor's summation contained improprieties, we find any error to beharmless in view of the overwhelming proof of defendant's guilt, which included evidence thatthe police saw defendant commit the crime and immediately recovered the victim's cell phonefrom defendant's person.
The court properly declined to submit petit larceny as a lesser included offense. There was noreasonable view of the evidence, viewed most favorably to defendant, that defendant did not stealthe cell phone from the victim's person (see People v Washington, 21 AD3d 253 [2005], lv denied 5NY3d 834 [2005], cert denied 546 US 1104 [2006]). Defendant's theory that the phonesomehow fell out of the sleeping victim's pocket is both speculative and directly contradicted bythe officers' observations. The only reasonable view was that defendant reached into the pocketand removed the phone, while dislodging and abandoning the victim's keys in the process ofdoing so.
The court properly denied the Mapp/Dunaway portion of defendant'ssuppression motion without a hearing since the allegations in his motion papers, when consideredin the context of the information provided by the People, failed to raise a factual disputerequiring a hearing (see People v Jones, 95 NY2d 721 [2001]; People v Mendoza,82 NY2d 415 [1993]). The felony complaint set forth, in great detail, the factual predicate fordefendant's [*2]arrest (compare People v Bryant, 8 NY3d 530 [2007]), and defendant'saverments were insufficiently specific to entitle him to a hearing. Concur—Tom, J.P.,Mazzarelli, Saxe, Marlow and Williams, JJ.