| People v Taylor |
| 2009 NY Slip Op 09820 [68 AD3d 1728] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Eugene D.Taylor, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered April 6, 2006. The judgment convicted defendant, upon a jury verdict, of grand larcenyin the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofgrand larceny in the fourth degree (Penal Law § 155.30 [4]). The evidence, viewed in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), islegally sufficient to establish that defendant stole property that "consist[ed] of a credit card ordebit card" (Penal Law § 155.30 [4]). In addition, viewing the evidence in light of theelements of the crime of grand larceny as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to the contention of defendant, he was not deprived of his right to a fair trial basedon prosecutorial misconduct. The prosecutor's description of the defense theory as an attempt to"distract" or "mislead" the jury with "conjecture, theorizing, [and] hypothesizing" was within thewide rhetorical bounds afforded to the prosecutor (see People v Allen, 121 AD2d 453,454 [1986], affd 69 NY2d 915 [1987]; People v Lynch, 60 AD3d 1479, 1480-1481 [2009], lv denied12 NY3d 926 [2009]). "The [remaining] challenged remarks generally constituted faircomment on the evidence and [the] reasonable inferences to be drawn therefrom, and [in anyevent] were responsive to defense arguments" (People v Sunter, 57 AD3d 226, 227 [2008], lv denied 12NY3d 762 [2009]).
We reject the further contention of defendant that the People presented evidence thatdefendant committed more than one act of grand larceny and that the jury therefore may haveconvicted defendant of an unindicted crime. Grand larceny in the fourth degree is a crime that,pursuant to the express statutory language, may be committed by alternate means of stealing acredit card or a debit card (see Penal Law § 155.30 [4]; see generally People vGiordano, 296 AD2d 714, 715-716 [2002], lv denied 99 NY2d 582 [2003]). Here,the indictment charged defendant with one count of grand larceny, and the People presentedevidence of a single act of grand larceny involving one MasterCard that functioned as both acredit card and a debit card. Thus, there is no [*2]possibility thatthe jury may have convicted defendant of an unindicted crime. Present—Scudder, P.J.,Fahey, Carni and Gorski, JJ.