People v. Brewer

176 A.D.2d 145, 574 N.Y.S.2d 32, 1991 N.Y. App. Div. LEXIS 12122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered August 11, 1989, convicting defendant of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree, and sentencing him to concurrent prison terms of 2 to 4 years, unanimously affirmed.

In prosecutions for grand larceny in the fourth degree (Penal Law § 155.30 [4]) and criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]), the People are not required to prove that a defendant knew that a wallet he planned to steal contained a credit card. (People v Mitchell, 77 NY2d 624, 626-628.) No reasonable view of the evidence could support a finding that the defendant here committed only petit larceny and criminal possession of stolen property in the fifth degree, and not grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree. The stolen wallet contained credit cards, a circumstance that necessarily elevates the offenses to the greater degree. Thus, the trial court properly refused to submit the lesser included offenses. Concur — Sullivan, J. P., Milonas, Ross, Asch and Smith, JJ.