People v Jones (John)

[*1] People v Jones (John) 2015 NY Slip Op 51542(U) Decided on October 27, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570813/12

The People of the State of New York, Respondent,

against

John Jones, Defendant-Appellant.

In consolidated criminal appeals, defendant appeals from (1) a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered June 14, 2012, after a nonjury trial, convicting him of unauthorized sale of transportation services and illegal access to transit authority services, and imposing sentence, and (2) two judgments (same court and Judge), each rendered June 14, 2012, after nonjury trials, convicting him of illegal access to transit authority services, and imposing sentences.

Per Curiam.

Judgments of conviction (James M. Burke, J.), each rendered June 14, 2012, modified on the law, to vacate the conviction of unauthorized sale of transportation services under docket number 2011CN002141 and to dismiss the count of the accusatory instrument relating thereto; as modified, judgments affirmed.

Defendant did not preserve by specific objections his current claims regarding the legal sufficiency of the evidence supporting his conviction for illegal access to transit authority services (see People v Gray, 86 NY2d 10 [1995]), and we decline to review them in the interest of justice. Were we to review these claims, we would find the evidence, including defendant's own testimony (see People v Miranda, 77 AD3d 1323 [2010], lv denied 16 NY3d 833 [2011]), was sufficient to support a finding that he lacked "written permission" to sell MetroCard "swipes" and thereby allow others access to the subway platform (21 NYCRR 1050.4[c]).

Defendant's claim that the People failed to prove the notice element of the charge of unauthorized sale of certain transportation services (see Penal Law § 165.16[1]) was also unpreserved for appellate review. However, since the People concede that they failed to prove that notice of the prohibitions against selling access to transportation services appeared "on the face of the farecard" or was "conspicuously posted in [the] transportation facilities" (Penal Law § 165.16[1]), we exercise our power to review this contention as a matter of discretion in the interest of justice, and reverse defendant's conviction of this charge (see People v Butler, 273 AD2d 613, 614-615 [2000], lv denied 95 NY2d 933 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 27, 2015