| People v James |
| 2012 NY Slip Op 08426 [101 AD3d 447] |
| December 6, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JohnJames, Appellant. |
—[*1]
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered September15, 2010, convicting defendant, after a jury trial, of criminal possession of a forged instrument inthe second degree and petit larceny, and sentencing him, as a second felony offender, to anaggregate term of 2 to 4 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The circumstances of defendant's use ofan altered MetroCard supported the inference that he possessed the card with the requisiteknowledge and intent. The evidence supports the People's version of the facts, that defendant wasaware that a MetroCard with a bent magnetic strip is readily capable of being used for thepurpose of selling rides to other persons, and defendant was intentionally taking advantage ofthat situation in making such sales.
To the extent defendant is claiming that the petit larceny count of the indictment was faciallyinsufficient, that claim is without merit because the count spelled out the elements of that crimewith the specificity required for an indictment (see CPL 200.50), and defendant isessentially challenging the underlying factual basis for that charge (see People v Ogunmekan, 95 AD3d701 [1st Dept 2012], lv denied 19 NY3d 999 [2012]; People v Greeman, 49 AD3d 463,464 [2008], lv denied 10 NY3d 934 [2008]). To the extent defendant is challenging thelegal sufficiency of the evidence, that claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we find it without merit. Defendant's position at trialwas [*2]that he was guilty of petit larceny, admitting that he sold"swipes" that rightfully belonged to the Transit Authority (compare People v Hightower, 18 NY3d 249 [2011]).Concur—Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam and Feinman, JJ.