| People v Lukens |
| 2013 NY Slip Op 04141 [107 AD3d 1406] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JackLukens, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Courtney E. Petitt of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered February 4, 2010. The judgment convicted defendant, upon a jury verdict, ofgrand larceny in the fourth degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reducing the conviction of grand larceny in the fourth degree (Penal Law§ 155.30 [1]) to petit larceny (§ 155.25) and vacating the sentence imposedon count one of the indictment and as modified the judgment is affirmed, and the matteris remitted to Oswego County Court for sentencing on the conviction of petit larceny.
Memorandum: On appeal from a judgment convicting him of grand larceny in thefourth degree (Penal Law § 155.30 [1]) and petit larceny (§ 155.25),defendant contends that County Court's Sandoval ruling constitutes an abuse ofdiscretion. We reject that contention. The court permitted the prosecutor to ask defendantwhether he had been convicted of criminal possession of a controlled substance in theseventh degree and identity theft in the third degree. The court also permitted theprosecutor to ask defendant whether he had two prior felony convictions and 15 priormisdemeanor convictions without revealing the underlying nature of those offenses, allof which were larcenies or related to larceny. We conclude that the court's determinationwas not an abuse of discretion inasmuch as it "reflects sensitivity to the particularprejudice that may result when a jury is made aware of the fact that the defendant haspreviously committed crimes that are similar to the charged crime" (People vWalker, 83 NY2d 455, 459 [1994]).
We also reject defendant's contention that the court erred in allowing the People tointroduce evidence of his prior involvement as an accomplice in an uncharged larceny.The evidence of an uncharged larceny committed by defendant and his codefendent wasproperly admitted under the intent, common scheme or plan, and identity exceptions tothe Molineux rule (see generally People v Ingram, 71 NY2d 474,479-480 [1988]; People v Molineux, 168 NY 264, 293-294 [1901]; People v Arguinzoni, 48AD3d 1239, 1240 [2008], lv denied 10 NY3d 859 [2008]).
We reject the further contention of defendant that the court erred in denying hismotion to sever the two counts of the indictment and to sever his trial from that of hiscodefendant.[*2]"Defendant's motion was untimely, anddefendant failed to show good cause for bringing his motion [eight] months after [hisarraignment]" (People vWilburn, 50 AD3d 1617, 1618 [2008], lv denied 11 NY3d 742 [2008];see CPL 255.20 [1], [3]). In any event, defendant's contention is without merit.The court did not err in denying defendant's motion to sever the counts of the indictmentbecause "[d]efendant failed to establish that there was '[s]ubstantially more proof on one. . . [of the] joinable offenses than on [the] other[ ] and there [was] asubstantial likelihood that the jury would be unable to consider separately the proof as itrelate[d] to each offense' " (People v Davis, 19 AD3d 1007, 1007 [2005], quoting CPL200.20 [3] [a]; see People vDozier, 32 AD3d 1346, 1346-1347 [2006], lv denied 8 NY3d 880[2007]). Additionally, the court did not abuse its discretion in denying defendant'smotion to sever his trial from that of his codefendant. "The evidence against defendantand his codefendant[ ] was essentially identical, and the respective defenses were not inirreconcilable conflict" (Peoplev Buccina, 62 AD3d 1252, 1253 [2009], lv denied 12 NY3d 913[2009]).
We agree with defendant that his conviction of grand larceny in the fourth degree isnot supported by legally sufficient evidence that the value of the stolen propertyexceeded $1,000 (see People vPallagi, 91 AD3d 1266, 1269-1270 [2012]). At trial, the People presented asurveillance video showing a male pushing a shopping cart containing merchandise outof a Tractor Supply Company store, and that video provided legally sufficient evidencefrom which the jury could reasonably conclude that defendant was the male in the video(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The only itemsclearly visible in the cart, however, were two bags of dog food, and the People presentedno evidence regarding the value of those items. Although the People did presentevidence that $1,899 in "pet containment" merchandise was missing from the store on thedate in question, no pet containment items are visible in the surveillance video, and thereis no other evidence connecting defendant to those missing items. Thus, we cannot onthis record conclude " 'that the jury ha[d] a reasonable basis for inferring, rather thanspeculating, that the value of the property exceeded the statutory threshold' of $1,000"(People v Brink, 78 AD3d1483, 1484 [2010], lv denied 16 NY3d 742 [2011], reconsiderationdenied 16 NY3d 828 [2011]). Nevertheless, we conclude that the evidence is legallysufficient to establish that defendant committed the lesser included offense of petitlarceny (see Pallagi, 91 AD3d at 1270; see generally Brink, 78 AD3d at1484). We therefore modify the judgment by reducing the conviction of grand larceny inthe fourth degree to petit larceny (Penal Law § 155.25) and vacating the sentenceimposed on count one of the indictment (see CPL 470.15 [2] [a]), and we remitthe matter to County Court for sentencing on the conviction of petit larceny (seeCPL 470.20 [4]).
Defendant's contention that his conviction of petit larceny is based upon legallyinsufficient evidence is not preserved for our review because defendant did not move fora trial order of dismissal with respect to that count of the indictment (see People vGray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit (seegenerally Bleakley, 69 NY2d at 495). Furthermore, viewing the evidence in light ofthe elements of the crime of petit larceny as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict withrespect to that crime is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Although defendant further contends that he was denied a fair trial based onprosecutorial misconduct during summation, that contention is not preserved for ourreview because defendant failed to object to the allegedly improper comments duringsummation (see People v Balls, 69 NY2d 641, 642 [1986]; People v Sulli, 81 AD3d1309, 1311 [2011], lv denied 17 NY3d 802 [2011]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Defendant's contention that he was denied effective assistance of counsel becausecounsel failed to make a timely motion to sever the indictment is without merit. "Anymotion to [*3]sever . . . the indictmentwould have had ' "little or no chance of success," ' and thus counsel's failure to makesuch a [timely] motion . . . does not indicate ineffectiveness of counsel"(Dozier, 32 AD3d at 1347, quoting People v Caban, 5 NY3d 143, 152 [2005]). Moreover, weconclude that the evidence, the law and the circumstances of this case, viewed in totalityand as of the time of representation, establish that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). In lightof our determination, we do not address defendant's remaining contention.Present—Smith, J.P., Fahey, Peradotto, Lindley and Whalen, JJ.