People v Sutherland

People v Sutherland 2017 NY Slip Op 05562 Decided on July 11, 2017 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 July 11, 2017
Friedman, J.P., Renwick, Andrias, Moskowitz, Gesmer, JJ.
4423 639/13

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

v

Kevin Sutherland, Defendant-Appellant.

Kushner Law Group, PLLC, Brooklyn (Michael P. Kushner of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 19, 2014, convicting defendant, after a jury trial, of attempted grand larceny in the second degree, and sentencing him to a term of six months, concurrent with five years' probation, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations. There was ample evidence that defendant made intentional false statements concerning a material fact when he attempted to sell counterfeit artwork to an undercover police officer. In particular, defendant affirmatively misrepresented that he had no reason to doubt the authenticity of a painting, when in fact defendant had been informed by Sotheby's that the painting could not be accepted for consignment sale because experts had determined that it was not authentic.

The court's supplemental instructions, including its rereading of the relevant portion of the main charge, made it clear to the jury that in this case defendant could only be convicted on the basis of affirmatively false statements, rather than omissions, and defendant's argument to the contrary is unavailing.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 11, 2017

CLERK