People v. Diop

Appellate Division of the Supreme Court of New York

People v. Diop

127 A.D.3d 611, 5 N.Y.S.3d 870

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

DecidedApril 23, 2015

Docket14925 3749/10

StatusPublished

This text of 127 A.D.3d 611 (People v. Diop) 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. Diop, 127 A.D.3d 611, 5 N.Y.S.3d 870 (N.Y. Ct. App. 2015).

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Opinion

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered May 12, 2011, convicting defendant, after a jury trial, of grand larceny in the third degree, and sentencing him to a term of two to six years, with restitution in the amount of $15,530, unanimously affirmed.

The court properly declined to deliver a circumstantial evidence charge, because the People’s case was not based entirely on circumstantial evidence, notwithstanding the fact that the jury was called upon to draw certain inferences (see People v Roldan, 88 NY2d 826 [1996]; People v Daddona, 81 NY2d 990 [1993]). Among other things, there was direct evidence that defendant collected cash from his employer’s clients, which the employer never received, as required. Moreover, defendant made a damaging admission.

The court properly exercised its discretion in admitting uncharged crime evidence tending to show defendant’s prior misappropriation of $750 from his employer. Given the fact *612 pattern, this evidence was probative of defendant’s intent (see People v Alvino, 71 NY2d 233, 242, 245 [1987]). The evidence was also properly admitted since it tended to show a common scheme or plan (see People v Kampshoff, 53 AD2d 325, 335 [4th Dept 1976], cert denied 433 US 911 [1977]), and it demonstrated how defendant committed the charged crime. The probative value of this evidence exceeded any prejudicial effect.

Although the prosecutor’s cross-examination of defendant about being in debt was inappropriate, we find the error to be harmless (see People v Crimmins, 36 NY2d 230 [1975]).

We perceive no basis for reducing the sentence.

Concur— Sweeny, J.P., Andrias, Manzanet-Daniels and Clark, JJ.

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Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered May 12, 2011, convicting defendant, after a jury trial, of grand larceny in the third degree, and sentencing him to a term of two to six years, with restitution in the amount of $15,530, unanimously affirmed.

The court properly declined to deliver a circumstantial evidence charge, because the People’s case was not based entirely on circumstantial evidence, notwithstanding the fact that the jury was called upon to draw certain inferences (see People v Roldan, 88 NY2d 826 [1996]; People v Daddona, 81 NY2d 990 [1993]). Among other things, there was direct evidence that defendant collected cash from his employer’s clients, which the employer never received, as required. Moreover, defendant made a damaging admission.

The court properly exercised its discretion in admitting uncharged crime evidence tending to show defendant’s prior misappropriation of $750 from his employer. Given the fact *612 pattern, this evidence was probative of defendant’s intent (see People v Alvino, 71 NY2d 233, 242, 245 [1987]). The evidence was also properly admitted since it tended to show a common scheme or plan (see People v Kampshoff, 53 AD2d 325, 335 [4th Dept 1976], cert denied 433 US 911 [1977]), and it demonstrated how defendant committed the charged crime. The probative value of this evidence exceeded any prejudicial effect.

Although the prosecutor’s cross-examination of defendant about being in debt was inappropriate, we find the error to be harmless (see People v Crimmins, 36 NY2d 230 [1975]).

We perceive no basis for reducing the sentence.

Concur— Sweeny, J.P., Andrias, Manzanet-Daniels and Clark, JJ.

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Bluebook (online)

127 A.D.3d 611, 5 N.Y.S.3d 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-diop-nyappdiv-2015.

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