| People v Allen |
| 2015 NY Slip Op 07867 [132 AD3d 1156] |
| October 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBrian Allen, Appellant. |
Mitch Kessler, Cohoes, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel)for respondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered November 26, 2013, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the third degree, grand larceny in the fourth degreeand petit larceny.
On March 30, 2013, while the two were waiting at a bus station in the City ofKingston, Ulster County, defendant reached into the coat pocket of the victim and tookhis wallet. The victim was able to retrieve his wallet with the aid of two bystanders, anddefendant departed the station in haste. The police responded and located defendant, whowas placed under arrest and found to have a switchblade knife in his possession.Defendant was thereafter charged in an indictment with several offenses. Following ajury trial, he was convicted of criminal possession of a weapon in the third degree, grandlarceny in the fourth degree and petit larceny. County Court sentenced defendant, asecond felony offender, to an aggregate prison term of 5
Defendant initially argues that the convictions for grand larceny in the fourth degreeand petit larceny were against the weight of the evidence, as the proof did not show thathe took the wallet with the requisite "intent to deprive another of property or toappropriate the same to himself or to a third person" (Penal Law § 155.05[1]; see Penal Law §§ 155.00, 155.25, 155.30 [5]). The proofmust show more than "an intent temporarily to use property without the owner'spermission, or even an intent to appropriate outright the benefits of the property'sshort-term use" (People v Jennings, 69 NY2d 103, 119 [1986]). Rather, adefendant must aim "to permanently [*2]deprive thevictim[ ] of the property" (People v Medina, 18 NY3d 98, 105 [2011]; see Peoplev Jennings, 69 NY2d at 118; People v Jacobs, 52 AD3d 432, 433 [2008], lvdenied 11 NY3d 833 [2008]; see also People v Parker, 121 AD3d 1190, 1191 [2014])."Larcenous intent is rarely susceptible of proof by direct evidence, and must usually beinferred from the circumstances surrounding the defendant's actions" (People v Russell, 41 AD3d1094, 1096 [2007], lv denied 10 NY3d 964 [2008] [citations omitted]; see People v Phoenix, 115AD3d 1058, 1060 [2014], lv denied 23 NY3d 1024 [2014]).
Here, defendant testified that he was seeking to buy a bus ticket, but did not have themoney to do so and had become "desperate." He had just panhandled a dollar from thevictim and, in so doing, became aware of where the victim kept his wallet and that therewas an additional $50 in it. Defendant proceeded to sit down next to the victim, jam hishand into the victim's pocket and take the wallet. Defendant then walked toward theother side of the bus station while he rifled through the wallet, which the victim was ableto grab back after defendant became distracted by multiple individuals who demandedthat he return it. Defendant testified that he took the wallet in a drunken stupor,perceiving it as a game, and denied having any interest in permanently depriving thevictim of the wallet or its contents. Those claims flew in the face of his need for money,however, as well as the testimony of the victim and others that defendant did not appearto be intoxicated and did not have a playful—or, for that matter, any—priorrelationship with the victim. The jury rejected the self-serving account offered bydefendant as to the reasons for his behavior and, according due deference to thatcredibility determination, we conclude that the larceny convictions are not against theweight of the evidence (seePeople v Joslyn, 103 AD3d 1254, 1255 [2013], lv denied 21 NY3d 944[2013]; see also People v Smith, 140 AD2d 259, 260-261 [1988], lvdenied 72 NY2d 924 [1988]; People v Burnice, 112 AD2d 642, 643[1985]).
Defendant next asserts that County Court erred in denying his application to suppresshis admission to the arresting officer that he had a knife. The statement was made afterdefendant had been detained for a considerable period of time and, in fact, after he hadbeen handcuffed and placed under arrest. The officer had not administeredMiranda warnings at that point. County Court found the statement to beadmissible because defendant was not in custody when the officer questioned himregarding weapons on his person but, as the People commendably concede, that findingwas erroneous (see New York v Quarles, 467 US 649, 655 [1984]; People v Nehma, 101 AD3d1170, 1172 [2012]; Peoplev Gause, 50 AD3d 1392, 1393-1394 [2008]). The People advance a differentrationale for upholding the suppression ruling, but CPL 470.15 (1) prevents us "fromreviewing an issue that was . . . not decided by the trial court" (People v Ingram, 18 NY3d948, 949 [2012]; see People v LaFontaine, 92 NY2d 470, 474 [1998]). Wetherefore turn to the issue of whether the failure to suppress the statement washarmless.
Defendant does not now dispute that probable cause existed to justify his arrest and,as a result, the knife itself was properly recovered in the search of his person thatfollowed (see Maryland v King, 569 US &mdash, &mdash, 133 S Ct 1958,1970-1971 [2013]; People vHill, 30 AD3d 687, 688 [2006]). At trial, defendant denied admitting to havingthe knife and, indeed, testified that he did not have "knowing and voluntary possession"of it, claiming that he had been given the knife months earlier and had forgotten about it(People v Wood, 58 AD3d242, 248 [2008], lv denied 12 NY3d 823 [2009]; see Penal Law§§ 15.00 [2]; 265.01 [1]; 265.02 [1]; People v Saunders, 85NY2d 339, 341-342 [1995]). He offered no explanation as to how he could have failed tonotice a switchblade that had been in his coat pocket for months, however, and"possession suffices to permit the inference that the possessor knows what he [or she]possesses, especially, but not exclusively, if it is in his [or her] hands, on his [or her]person, in his [or her] [*3]vehicle, or on his [or her]premises" (People v Reisman, 29 NY2d 278, 285 [1971], cert denied 405US 1041 [1972]; see People vSmith, 32 AD3d 1318, 1320 [2006], lv denied 7 NY3d 929 [2006]).This proof, in short, constitutes "overwhelming evidence of defendant's guilt, and there isno reasonable possibility that the jury would have accepted his incredible testimony, inwhich he attempted to explain his possession of" the knife (People v Wilson, 93 AD3d483, 484 [2012], lv denied 19 NY3d 978 [2012]; see People vGause, 50 AD3d at 1394; People v O'Connor, 6 AD3d 738, 739-740 [2004], lvdenied 3 NY3d 645 [2004]). Thus, we find that the failure to suppress the statementwas harmless error.
Contrary to defendant's further contention, County Court properly allowed thePeople to submit proof regarding his prior convictions as part of their case-in-chief."While evidence of prior bad acts or uncharged crimes is inadmissible to prove the crimecharged or to show a defendant's propensity to commit this crime, an exception to thisrule exists where the evidence is admitted to show a defendant's intent, especially afterthe defendant has put his or her intent [in] issue" (People v Wright, 5 AD3d 873, 875 [2004], lvdenied 3 NY3d 651 [2004] [citations omitted]; see People v Ingram, 71NY2d 474, 479 [1988]; Peoplev Wilson, 100 AD3d 1045, 1047 [2012], lv denied 22 NY3d 998[2013]). Defendant did just that from the outset of the trial and, as a result, his priorconvictions for various larceny offenses, robbery in the third degree and criminalpossession of stolen property in the fifth degree became relevant. The record reflects thatCounty Court properly weighed the probative value of that evidence against its potentialfor prejudice, excluded the remainder of defendant's criminal history and repeatedly gaveappropriate limiting instructions (see People v Wilson, 100 AD3d at 1047-1048;People v Carter, 50 AD3d1318, 1321-1322 [2008], lv denied 10 NY3d 957 [2008]).
Defendant's remaining challenge to the jury instructions given by County Court isunpreserved and, in any event, without merit.
Lahtinen, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.