| People v Rodriguez |
| 2015 NY Slip Op 01179 [125 AD3d 472] |
| February 10, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Rafael Rodriguez, Appellant. |
Scott Rosenberg, The Legal Aid Society, New York (Allen Fallek of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered onor about September 28, 2011, convicting defendant, after a jury trial, of grand larceny inthe fourth degree and criminal possession of stolen property in the fifth degree, andsentencing him, as a second felony offender, to an aggregate term of 2 to 4 years,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007). There is no basis for disturbing thejury's credibility determinations. The evidence established that defendant took thevictim's property by reaching into her pocket, and the alternative scenario posited bydefendant is speculative and unsupported by any evidence.
Defendant's belated mistrial motion did not preserve his claim regarding the court'sfailure to instruct the deliberating jurors pursuant to CPL 270.40 and 310.10 beforereleasing them for lunch. The record does not support defendant's assertion that he wasprevented from raising the issue at a time when the error could have been avoided. Wedecline to review this unpreserved issue in the interest of justice. As an alternativeholding, we find no basis for reversal (see CPL 470.05 [1]). The court properlyexercised its discretion in denying defendant's mistrial motion, particularly because it hadalready given the jury instructions, throughout the [*2]trial, that adequately conveyed the necessary admonitions(see People v Williams, 46AD3d 585 [2d Dept 2007], lv denied 10 NY3d 772 [2008]). Furthermore,defendant would not accept any remedy other than a mistrial. Concur—Sweeny,J.P., Renwick, Moskowitz, Feinman and Kapnick, JJ.