| People v Carey |
| 2018 NY Slip Op 02050 [159 AD3d 1529] |
| March 23, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Martin M.Carey, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of counsel), fordefendant-appellant.
James B. Ritts, District Attorney, Canandaigua (Melanie J. Bailey of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedJanuary 8, 2015. The judgment convicted defendant, upon a jury verdict, of criminal possessionof a weapon in the third degree, menacing in the second degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously modified on the factsby reversing that part convicting defendant of petit larceny and dismissing count three of theindictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [1]),menacing in the second degree (§ 120.14 [1]), and petit larceny(§ 155.25). Defendant contends that County Court erred in failing to charge the juryon the defense of justification because there is a reasonable view of the evidence in which hethreatened only ordinary physical force in the incident that formed the basis for the counts ofcriminal possession of a weapon in the third degree and menacing in the second degree, and thathe was justified in doing so in response to threats made by the victim. That contention isunpreserved for our review, inasmuch as defendant did not make that specific argument in hisrequest for a justification instruction (see generally People v Hamilton, 116 AD3d 614, 614 [1st Dept2014], lv denied 23 NY3d 1037 [2014]; People v Davis, 111 AD3d 1302, 1303 [4th Dept 2013], lvdenied 22 NY3d 1137 [2014]). In any event, we conclude that defendant's contention iswithout merit. "[T]here are no circumstances when justification . . . can be a defenseto the crime of criminal possession of a weapon" (People v Pons, 68 NY2d 264, 267[1986]). With respect to the menacing count, the evidence establishes that defendant swung aknife at the victim, which constitutes the use of deadly physical force (see People v Kerley, 154 AD3d1074, 1075 [3d Dept 2017], lv denied 30 NY3d 1106 [2018]; People v Taylor, 140 AD3d 1738,1739 [4th Dept 2016]; People vHaynes, 133 AD3d 1238, 1239 [4th Dept 2015], lv denied 27 NY3d 998[2016]), and there is thus no reasonable view of the evidence in which his conduct was justified(see People v Jones, 142 AD3d1383, 1384 [4th Dept 2016], lv denied 28 NY3d 1073 [2016]; People v Richardson, 115 AD3d617, 618 [1st Dept 2014], lv denied 23 NY3d 1041 [2014]).
Defendant further contends, with respect to the petit larceny count, that the court erred ininstructing the jury on the theory of larceny by trick inasmuch as the evidence did not supportsuch an instruction. Defendant objected to the jury instruction on the theory of larceny by trickonly on the ground that such theory was not alleged in the indictment or a bill of particulars, andthus he failed to preserve his present contention for our review (see People v Kendricks, 23 AD3d1119, 1119 [4th Dept 2005]; seegenerally People v Medina, 18 NY3d 98, 104 [2011]). In addition, defendant failed topreserve for our review his contention that the evidence is legally insufficient to support aconviction of petit larceny under the theory of larceny by trick inasmuch as he moved for a trialorder of dismissal with respect to that count only on the ground that the [*2]People failed to establish that money was taken from the victim orthat defendant exercised dominion and control over the money (see generally People vGray, 86 NY2d 10, 19 [1995]). We decline to exercise our power to review those contentionsas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Nevertheless, viewing the evidence in light of the elements of petit larceny as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we agree with defendant that the verdict finding him guilty of thatcrime is against the weight of the evidence. Defendant was convicted of larceny pursuant to thecommon-law theory of larceny by trick, which occurs "where the owner of the property wasinduced to part with possession, but not title, due to some trick or artifice by the wrongdoer whosubsequently misappropriates the property" (People v Churchill, 47 NY2d 151, 155[1979]; see People v Norman, 85 NY2d 609, 618 n 3 [1995]). Here, the verdict iscontrary to the weight of the evidence with respect to whether defendant used some trick orartifice to obtain property from the victim. We therefore modify the judgment by reversing thatpart convicting defendant of petit larceny and dismissing that count of the indictment.Present—Smith, J.P., Peradotto, Lindley, Curran and Winslow, JJ.