People v. Gomez

253 A.D.2d 719, 679 N.Y.S.2d 364, 1998 N.Y. App. Div. LEXIS 9766

Opinion

Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered July 31, 1996, convicting defendant, after a jury trial, of grand larceny in the fourth degree and jostling, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years and 1 year, respectively, unanimously affirmed.

Defendant’s challenges to the weight and sufficiency of the evidence supporting his conviction of grand larceny in the fourth degree are similar to those raised unsuccessfully on the co-defendant’s appeal (People v Santana, 250 AD2d 537), and we see no reason to reach a different result as to this defendant.

The court properly refused to submit to the jury the lesser included offense of attempted grand larceny in the fourth degree since no reasonable view of the evidence supports the view that defendant committed the lesser offense but not the greater, absent “selective dissection of the integrated testimony of a single witness” (People v Scarborough, 49 NY2d 364, 373).

The arresting officer’s redirect testimony that some of the officers with whom he worked that day knew defendant did not deprive defendant of a fair trial. Such testimony “did not suggest to the jury that defendant had engaged in prior misconduct, or had prior contact with law enforcement.” (People v Greeman, 235 AD2d 281, 282, lv denied 89 NY2d 1035.) Moreover, the co-defendant opened the door to such testimony (see, People v Melendez, 55 NY2d 445, 451), and defendant made affirmative use of it. Concur — Sullivan, J. P., Nardelli, Rubin, Tom and Mazzarelli, JJ.