| People v Vataj |
| 2013 NY Slip Op 04883 [107 AD3d 610] |
| June 27, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Victor Vataj, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 1,2011, convicting defendant, after a jury trial, of grand larceny in the fourth degree, andsentencing him, as a second felony offender, to a term of 1½ to 3 years,unanimously affirmed.
The court properly declined to submit petit larceny as a lesser included offense. Noreasonable view of the evidence, viewed in the light most favorable to defendant,supported the conclusion that defendant and his codefendants picked up the victim's cellphone from the floor rather than stealing it from his person by removing it from thevictim's hand while he was sleeping (see e.g. People v Miranda, 66 AD3d 509 [1st Dept 2009],lv denied 13 NY3d 909 [2009]; People v Holloway, 45 AD3d 477 [1st Dept 2007], lvdenied 10 NY3d 766 [2008]). The victim testified that he had fallen asleep with thephone in his hand, and the police officer testified, without contradiction, that he saw oneof the codefendants remove it from the victim's hand while defendant served as alookout. No evidence supported an inference that anyone picked the phone up from thefloor. Concur—Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels andFeinman, JJ.