People v. Gellman

220 A.D.2d 202, 632 N.Y.S.2d 6, 1995 N.Y. App. Div. LEXIS 9665

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1995
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Ira Beal, J.), rendered November 23, 1993, convicting defendant, after a jury trial, of two counts of grand larceny in the fourth degree and two counts of criminal possession of stolen property in the fourth degree, and sentencing him, as a predicate felon, to concurrent terms of l1/2 to 3 years, unanimously affirmed.

The court properly refused to charge petit larceny and criminal possession of stolen property in the fifth degree as lesser included offenses. No reasonable view of the evidence supported a finding that defendant committed the lesser, but not the greater, crimes. For the jury to so find, it would have had to speculate that the complainant forgot to put her wallet in her purse or that she lost the wallet in the few hours before the incident; however, in these matters, such speculation is impermissible (see, People v Scarborough, 49 NY2d 364, 371). Concur—Murphy, P. J., Wallach, Ross, Nardelli and Tom, JJ.