People v. Cunningham

73 A.D.2d 976, 424 N.Y.S.2d 240, 1980 N.Y. App. Div. LEXIS 9916

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 1, 1978, upon resentence, convicting him of grand larceny in the third degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. Judgment affirmed. Defendant stole a billfold from a shoulder bag being worn by a decoy policeman. At the time of the larceny, the policeman was sitting on a step on a stairway leading to a subway station with his right shoulder against the wall, and with the strap of the shoulder bag around his left shoulder. The shoulder bag from which defendant removed the billfold was "more or less hanging” on the officer’s back. We hold that under these facts, the billfold was stolen "from the person” of the officer, so as to constitute grand larceny pursuant to subdivision 5 of section 155.30 of the Penal Law. Since there was no view of the evidence which would support a finding that defendant committed petit larceny but not grand larceny, the court acted properly in refusing to charge the jury as to petit larceny (see CPL 300.50, subd 1; People v Shuman, 37 NY2d 302). We have considered the other contentions raised by defendant and have found them to be without merit. Mangano, J. P., Rabin, Gulotta and Margett, JJ., concur.