People v Jacobs

2008 NY Slip Op 05811

Decided on June 26, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 26, 2008
Saxe, J.P., Nardelli, Moskowitz, Acosta, DeGrasse, JJ.
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Richard M. Greenberg, Office of the Appellate Defender, New
York (Kerry S. Jamieson of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Allen H.
Saperstein of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered July 5, 2006, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility. Defendant's pattern of conduct toward the victim before, during and after the incident supports the conclusion that, at the time of the theft, he intended to permanently deprive her of her cell phone even though he ultimately returned it as the result of subsequent
circumstances (see People v Ramos, 12 AD3d 316 [2004], lv denied 95 NY2d 961 [2001]; People v Quinones, 162 AD2d 175 [1990], lv denied 76 NY2d 863 [1990]).

The People introduced testimony that defendant returned the phone with an extremely vulgar photograph stored in its memory, and that the photograph's date and time stamp established it was taken while the phone was in defendant's possession. Although this information was relevant to establish the duration of defendant's possession of the phone and had some bearing on defendant's hostility to the victim, who had rejected his romantic advances, it was not necessary to show the jury the photograph itself, as well as an enlargement thereof. However, we find that any error in this regard was harmless. The other evidentiary rulings at [*2]issue on appeal were proper exercises of discretion.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 26, 2008

CLERK