People v Diop

People v Diop 2015 NY Slip Op 03414 Decided on April 23, 2015 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 April 23, 2015
Sweeny, J.P., Andrias, Manzanet-Daniels, Clark, JJ.
14925 3749/10

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

v

Allassane Diop, Defendant-Appellant.

The Legal Aid Society, New York (Scott A. Rosenberg of counsel), and Orrick, Herrington & Sutcliffe LLP, New York (Matthew S. Ingles of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered May 12, 2011, convicting defendant, after a jury trial, of grand larceny in the third degree, and sentencing him to a term of two to six years, with restitution in the amount of $15,530, unanimously affirmed.

The court properly declined to deliver a circumstantial evidence charge, because the People's case was not based entirely on circumstantial evidence, notwithstanding the fact that the jury was called upon to draw certain inferences (see People v Roldan , 88 NY2d 826 [1996]; People v Daddona , 81 NY2d 990 [1993]). Among other things, there was direct evidence that defendant collected cash from his employer's clients, which the employer never received, as required. Moreover, defendant made a damaging admission.

The court properly exercised its discretion in admitting uncharged crime evidence tending to show defendant's prior misappropriation of $750 from his employer. Given the fact pattern, this evidence was probative of defendant's intent (see People v Alvino , 71 NY2d 233, 242, 245 [1987]). The evidence was also properly admitted since it tended to show a common scheme or plan (see People v Kampshoff , 53 AD2d 325, 335 [4th Dept 1976], cert denied 433 US 911 [1977]), and it demonstrated how defendant committed the charged crime. The probative value of this evidence exceeded any prejudicial effect.

Although the prosecutor's cross-examination of defendant about being in debt was inappropriate, we find the error to be harmless (see People v Crimmins , 36 NY2d 230 [1975]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 23, 2015

CLERK