People v. Belanger (Brian)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 22, 2020
• Docket: 2020 NYSlipOp 50468(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Brian Belanger, Defendant-Appellant.

In consolidated appeals, defendant appeals from two judgments of the Criminal Court of the City of New York, New York County (Anne J. Swern, J.), each rendered February 19, 2019, convicting him, upon his pleas of guilty, of two counts of petit larceny, and imposing sentence.

Per Curiam.

Judgments of conviction (Anne J. Swern, J.), rendered February 19, 2019, affirmed.

In view of defendant's knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, 23 NY3d 518, 521 [2014]). So viewed, the accusatory instrument charging petit larceny (see Penal Law § 155.25) under docket number 2019NY003336 was not jurisdictionally defective. The instrument alleges that a store detective at Saks Fifth Avenue observed defendant hand multiple items of store merchandise, including a pair of eyeglasses and a wallet, to a separately charged defendant (Baire), who placed the items in his pocket, and then both "defendants walk[ed] together out of the store, past all points of sale, without paying for the items." These allegations were sufficient for pleading purposes to establish that defendant intentionally aided Baire in the theft of store merchandise (see Penal Law § 20.00; People v Olivo, 52 NY2d 309, 317—19 [1981]; People v Williams, 64 Misc 3d 129[A], 2019 NY Slip Op 51027[U] [App Term, 1st Dept 2019], lv denied 34 NY3d 939 [2019]).

In view of our determination upholding the petit larceny conviction under docket number 2019NY003336, defendant's argument that his petit larceny conviction under docket number 2018NY047176 should be vacated because it was induced by a promise of a concurrent sentence with his conviction in the former case, is unavailing (see People v Rodriguez, 153 AD3d 235, 247-248 [2017], affd 31 NY3d 1067 [2018]).

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court

Decision Date: April 22, 2020