| People v Starks |
| 2010 NY Slip Op 01581 [70 AD3d 585] |
| February 25, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Eduardo Starks, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Charlotte E. Fishman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki Scherer, J., at suppression motion;Eduardo Padro, J., at nonjury trial and sentence), rendered September 18, 2006, convictingdefendant of two counts of criminal possession of stolen property in the fourth degree, andsentencing him, as a second felony offender, to concurrent terms of 2 to 4 years, unanimouslyaffirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence. "The circumstantial evidence warranted the conclusion that the [electronic transfercards] constituted stolen property in that [they] had been stolen either by common-lawtrespassory taking or by acquiring lost property, as defined in Penal Law § 155.05 (2) (b)"(People v Meador, 279 AD2d 327, 328 [2001], lv denied 96 NY2d 865 [2001]),and that defendant knew they were stolen and intended to benefit himself or impede the owners'recovery (see id.). A "defendant's knowledge that property is stolen may be provencircumstantially, and the unexplained or falsely explained recent exclusive possession of thefruits of a crime allows a [trier of fact] to draw a permissible inference that defendant knew theproperty was stolen" (People v Landfair, 191 AD2d 825, 826 [1993], lv denied81 NY2d 1015 [1993]). Contrary to defendant's argument on appeal, the explanation for hispossession of the cards contained in his statement to the police was far from innocent. Inparticular, it was highly unlikely that defendant "found" the two cards at different times andplaces. Furthermore, even if defendant found the cards, the evidence compels the conclusion thathe did not take, and had no intention of taking, any measures, reasonable or otherwise, to returneither card to its owner (see Penal Law § 155.05 [2] [b]). We have considered andrejected defendant's remaining arguments concerning the sufficiency and weight of the evidence.
Defendant's suppression claims, including those asserting failures of proof at the hearing, areunpreserved (see e.g. People v Shomo, 265 AD2d 184 [1999], lv denied94 NY2d 907 [2000], cert denied 530 US 1280 [2000]), and we decline to review themin the interest of justice. The suppression court did not "expressly decide[ ]" (CPL 470.05 [2])the particular issues raised on appeal (see People v Turriago, 90 NY2d 77, 83-84[1997]). Moreover, the rulings the court [*2]made were not madein response to a protest by a party (seePeople v Colon, 46 AD3d 260, 263 [2007]). As an alternative holding, we also rejectdefendant's claims on the merits. Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acostaand Abdus-Salaam, JJ.