| People v Johnson |
| 2014 NY Slip Op 06545 [120 AD3d 1154] |
| September 30, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Marcellus Johnson, Appellant. |
Cardozo Appeals Clinic, New York (Stanley Neustadter of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered March22, 2012, as amended March 29, 2012, convicting defendant, after a jury trial, of robberyin the third degree (two counts), grand larceny in the fourth degree (three counts) andcriminal possession of stolen property in the fourth degree, and sentencing him, as asecond felony offender, to an aggregate term of 3
We reject defendant's argument that his convictions on counts relating to his takingof the victim's wallet and phone were against the weight of the evidence with respect tothe element of larcenous intent. The evidence supports the conclusion that, at the time ofthe taking, defendant intended to permanently deprive the victim of those items, eventhough defendant then discarded those items, apparently to divert the victim as defendantescaped with the victim's debit card (see e.g. People v Jacobs, 52 AD3d 432 [1st Dept 2008], lvdenied 11 NY3d 833 [2008]).
The court properly admitted portions of telephone calls made by defendant fromRikers Island that were routinely recorded by the Department of Correction. These callswere clearly admissible, notwithstanding that defendant's right to counsel had attached(see Kuhlmann v Wilson, 477 US 436, 459 [1986]; Maine v Moulton,474 US 159, 176 [1985]; see also People v Campney, 94 NY2d 307 [1999];People v Harris, 57 NY2d 335, 342 [1982], cert denied 460 US 1047[1983]). We have considered and rejected defendant's remaining claims regarding therecorded calls. Concur—Mazzarelli, J.P., Andrias, Moskowitz, Manzanet-Danielsand Clark, JJ.