People v. Collado

2017 NY Slip Op 582, 146 A.D.3d 708, 47 N.Y.S.3d 266

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2017
• Docket: 2910 6110/11
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered October 15, 2012, convicting defendant, after a nonjury trial, of grand larceny in the fourth degree and criminal mischief in the fourth degree, and sentencing him to concurrent terms of five years’ probation, unanimously modified, on the law, to the extent of reducing the sentence on the criminal mischief conviction to a term of three years’ probation, and otherwise affirmed.

Defendant’s challenges to the sufficiency and weight of the evidence supporting his grand larceny conviction are unavailing (see People v Danielson, 9 NY3d 342, 348-349 [2007]). By seizing a fellow bus passenger’s phone, refusing to return it and then throwing it out of the bus window into heavy car traffic (which resulted in the phone’s destruction) defendant demonstrated an intent to permanently deprive the victim of her phone by withholding it under circumstances that would destroy its economic value, or disposing of it under circumstances rendering it unlikely that the victim would recover it (see Penal Law § 155.00 [3]; People v Kirnon, 39 AD2d 666, 667 [1972], affd 31 NY2d 877 [1972]). The evidence supports the conclusion that defendant deliberately deprived the victim of her property, rather than that he was acting recklessly.

As the People concede, the five-year term of probation for the conviction of criminal mischief in the fourth degree, a class A misdemeanor, was unlawful, and we reduce the sentence accordingly.

Concur — Mazzarelli, J.P., Manzanet-Daniels, Fein-man, Webber and Gesmer, JJ.