People v. Vataj

107 A.D.3d 610, 967 N.Y.S.2d 644

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 2013
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 1, 2011, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of IV2 to 3 years, unanimously affirmed.

The court properly declined to submit petit larceny as a lesser included offense. No reasonable view of the evidence, viewed in the light most favorable to defendant, supported the conclusion that defendant and his codefendants picked up the victim’s cell phone from the floor rather than stealing it from his person by removing it from the victim’s hand while he was sleeping (see e.g. People v Miranda, 66 AD3d 509 [1st Dept 2009], lv denied 13 NY3d 909 [2009]; People v Holloway, 45 AD3d 477 [1st Dept 2007], lv denied 10 NY3d 766 [2008]). The victim testified that he had fallen asleep with the phone in his hand, and the police officer testified, without contradiction, that he saw one of the codefendants remove it from the victim’s hand while defendant served as a lookout. No evidence supported an inference that anyone picked the phone up from the floor. Concur — Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels and Feinman, JJ.