People v. Devine

Appellate Division of the Supreme Court of New York

People v. Devine

276 A.D.2d 258, 714 N.Y.S.2d 203, 2000 N.Y. App. Div. LEXIS 9847

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 3, 2000

StatusPublished

Cited by2 cases

This text of 276 A.D.2d 258 (People v. Devine) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Devine, 276 A.D.2d 258, 714 N.Y.S.2d 203, 2000 N.Y. App. Div. LEXIS 9847 (N.Y. Ct. App. 2000).

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Opinion

Judgment, Supreme Court, New York County (Joan Sudolnik, J., at Sandoval ruling; Colleen McMahon, J., at jury trial and sentence), rendered August 17, 1998, convicting defendant of grand larceny in the second degree and five counts of grand larceny in the third degree, and sentencing him to a term of lVs to 4 years, three terms of 1 year and two terms of 3 months, all sentences to be served concurrently, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence warranted rejection of defendant’s claim that he made, or believed he was making, authorized expenditures for union purposes, since the expenditures, such as hotel rooms for a relative having no connection to union business, were “so clearly personal in nature that such a claim is scarcely credible.” (United States v Ottley, 509 F2d 667, 672.) The evidence also warranted reasonable inferences that defendant acted with accessorial liability as to expenditures made by others, and that defendant had no intention of making reimbursement for any of the expenditures in question.

Defendant’s challenges to the People’s summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the People’s summation were within the broad bounds of permissible rhetorical comment (see, People v Galloway, 54 NY2d 396).

If there was Sandoval error, it was harmless in light of the [259]*259overwhelming evidence of defendant’s guilt and the lack of any significant probability that defendant would have been acquitted had the error not occurred and had defendant consequently chosen to take the stand (see, People v Williams, 56 NY2d 236, 240-241),

We perceive no abuse of sentencing discretion.

We have considered and rejected defendant’s remaining claims. Concur — Sullivan, P. J., Rosenberger, Lerner, Andrias and Friedman, JJ.

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Judgment, Supreme Court, New York County (Joan Sudolnik, J., at Sandoval ruling; Colleen McMahon, J., at jury trial and sentence), rendered August 17, 1998, convicting defendant of grand larceny in the second degree and five counts of grand larceny in the third degree, and sentencing him to a term of lVs to 4 years, three terms of 1 year and two terms of 3 months, all sentences to be served concurrently, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence warranted rejection of defendant’s claim that he made, or believed he was making, authorized expenditures for union purposes, since the expenditures, such as hotel rooms for a relative having no connection to union business, were “so clearly personal in nature that such a claim is scarcely credible.” (United States v Ottley, 509 F2d 667, 672.) The evidence also warranted reasonable inferences that defendant acted with accessorial liability as to expenditures made by others, and that defendant had no intention of making reimbursement for any of the expenditures in question.

Defendant’s challenges to the People’s summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the challenged portions of the People’s summation were within the broad bounds of permissible rhetorical comment (see, People v Galloway, 54 NY2d 396).

If there was Sandoval error, it was harmless in light of the [259]*259overwhelming evidence of defendant’s guilt and the lack of any significant probability that defendant would have been acquitted had the error not occurred and had defendant consequently chosen to take the stand (see, People v Williams, 56 NY2d 236, 240-241),

We perceive no abuse of sentencing discretion.

We have considered and rejected defendant’s remaining claims. Concur — Sullivan, P. J., Rosenberger, Lerner, Andrias and Friedman, JJ.

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Bluebook (online)

276 A.D.2d 258, 714 N.Y.S.2d 203, 2000 N.Y. App. Div. LEXIS 9847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-devine-nyappdiv-2000.

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