People v. Kelly (Donny)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 22, 2019
• Docket: 2019 NYSlipOp 50223(U)
• Status: Published

Opinion

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<br><br><div align="center"><b><font size="+1">The People of the State of New York, Respondent,

<br><br>against<br><br>Donny Kelly, Appellant.

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<p>

Appellate Advocates (Rebecca J. Gannon of counsel), for appellant.

Queens County District Attorney (John M. Castellano, Johnnette Traill, and William H. Branigan of counsel), for respondent.

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<p>Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Michelle A. Armstrong, J.), rendered January 21, 2016. The judgment convicted defendant, after a nonjury trial, of attempted petit larceny and attempted criminal possession of stolen property in the fifth degree, and imposed sentence.</p>

<p>ORDERED that the judgment of conviction is affirmed.</p>

<p>After a nonjury trial, defendant was found guilty of attempted petit larceny (Penal Law  110.00, 155.25) and attempted criminal possession of stolen property in the fifth degree (Penal Law  110.00, 165.40). Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review since he made only a general motion to dismiss and did not specify any of the specific grounds raised on appeal (<i>see</i> CPL 470.05 [2]; <a href="../2005/2005_05099.htm" target="_blank"><i>People v Leon</i>, 19 AD3d 509</a> [2005], <i>affd</i> 7 NY3d 109 [2006]). In any event, viewing the evidence in the light most favorable to the prosecution (<i>see People v Contes</i>, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of attempted petit larceny and attempted criminal possession of stolen property in the fifth degree beyond a reasonable doubt. The evidence demonstrated that defendant had engaged in conduct which tended to effect the commission of the offense of petit larceny (<i>see </i>Penal Law  110.00, 155.25) by intentionally taking the complainant's faucet in order to deprive it of that item. In addition, the People established that defendant engaged in conduct which tended to effect the commission of the offense of attempted criminal possession of stolen property in the fifth degree (Penal Law  110.00, 165.40) by intentionally impeding the complainant's recovery of the faucet in order to benefit himself. Furthermore, upon the exercise of our factual review power (<i>see </i>CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (<a href="../2006/2006_08640.htm" target="_blank"><i>see People v Romero</i>, 7 NY3d 633</a> [2006]).</p>

<p>Accordingly, the judgment of conviction is affirmed.</p>

<p>PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.</p>

<br>ENTER:<br>Paul Kenny<br>Chief Clerk<br>Decision Date: February 22, 2019

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