People v McDonald

People v McDonald 2012 NY Slip Op 00292 Decided on January 19, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 19, 2012
Andrias, J.P., Sweeny, Moskowitz, Renwick, Freedman, JJ.
6573 1413/08

[*1]The People of the State of New York, Respondent,

v

Koran McDonald, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Cheryl
Williams of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of
counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered March 20, 2009, convicting defendant, after a jury trial, of grand larceny in the fourth degree and possession of burglar's tools, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

Defendant did not preserve his claim that the court should have given the jury full statutory definitions of the terms "deprive" and "appropriate" set forth in subdivisions (3) and (4) of Penal Law § 155.00, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. The concept that a deprivation or appropriation must be intended to be permanent or virtually permanent is an
essential part of the definition of larcenous intent (see People v Medina, __ NY3d __, 2011 NY Slip Op 08224, *5 [Nov 17, 2011]). Nevertheless, any error in omitting the full definitions was harmless in light of the evidence and issues at trial.

Defendant and an accomplice entered a store, placed numerous video games in their backpacks, went past cash registers and approached the exit. In addition, defendant was equipped with tools suited to foiling store security devices. At the time the larceny was complete (see People v Olivo, 52 NY2d 309, 318 [1981]), defendant clearly intended to remove the video games from the store permanently. There was no reasonable view of the evidence that defendant only intended a temporary taking. Moreover, defendant, who pursued other lines of defense not at issue on appeal, made no such argument at trial. There was evidence that, after the taking was complete, defendant attempted to abandon the larcenous enterprise when he realized he would not be able to escape with the property. However, this had no bearing on defendant's intent, at the time of the taking, to permanently acquire the video games.

Accordingly, there was no reasonable possibility that the lack of full definitions of deprive and appropriate had any effect on the verdict. For similar reasons, we reject defendant's claim that his counsel rendered ineffective assistance by failing to request these instructions. Regardless of whether counsel should have made the requests, the omission could not have caused defendant any prejudice (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668, 694 [1984]).

The court properly denied defendant's motion to preclude his postarrest written [*2]statement, made on the ground of allegedly insufficient notice under CPL 710.30(1)(a). The notice supplied by the People was a short summary of the written statement. This notice essentially conveyed the incriminating content of the statement, and it gave defendant enough information to identify the statement and challenge its admissibility by way of a motion to suppress (see People v Lopez, 84 NY2d 425, 428 [1994]; People v Cooper, 158 AD2d 743, 744 [1990], revd on other grounds 78 NY2d 476 [1991]). In any event, any error with respect to the statement is harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2012

CLERK