| People v Miranda |
| 2009 NY Slip Op 07338 [66 AD3d 509] |
| October 15, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Nelson Miranda, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Peter M. Rienzi of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered February20, 2008, convicting defendant, after a jury trial, of grand larceny in the fourth degree, andsentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
The court properly declined to submit petit larceny as a lesser included offense. Noreasonable view of the evidence, viewed most favorably to defendant, supported a finding thatdefendant had picked the victim's electronic translator up from the floor, rather than stealing itfrom her person by removing it from a pocket of her backpack. To the contrary, two policeofficers testified that they observed defendant remove the translator from the backpack pocket;the officers specifically denied seeing any items fall from the backpack. Moreover, even thoughthere was evidence that the pocket was partially unzipped, there was no evidence that thebackpack was ever turned upside down or that anything else occurred that would cause an objectto fall out without violating the law of gravity. In light of this record, any inference that thetranslator fell out of the complainant's backpack would have been both speculative and contraryto the evidence (see People vHolloway, 45 AD3d 477 [2007], lv denied 10 NY3d 766 [2008]).Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and DeGrasse, JJ.