People v Harris

People v Harris 2009 NY Slip Op 08701 [67 AD3d 612] November 24, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent,
v
Edward Harris, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered November 28, 2007, as amended December 3, 2007, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the persistent felony offender adjudication and replacing it with a second felony offender adjudication and reducing the sentence to 2 to 4 years, and otherwise affirmed.

The court properly declined to submit petit larceny as a lesser included offense. There was no reasonable view of the evidence, viewed most favorably to defendant (see generally People v Scarborough, 49 NY2d 364 [1980]), that defendant did not steal a wallet from the victim's person (Penal Law § 155.30 [5]), but instead only committed petit larceny by acquiring lost property (Penal Law § 155.05 [2] [b]). Defendant posits a theory, unsupported by any evidence, that he picked up the wallet and fled with it after an unidentified person stole the wallet and dropped or discarded it. However, the fast-paced chain of events, with particular reference to the fact that immediately after the theft a witness saw defendant fleeing from the pursuing victim and holding the wallet, placed defendant's alternative theory outside the realm of reasonable [*2]possibility. The victim's inability to identify the thief, or to accurately describe him at trial, does not warrant a different conclusion.

We find the sentence excessive to the extent indicated. Concur—Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and Roman, JJ.