People v Brugman (Alex)

[*1] People v Brugman (Alex) 2013 NY Slip Op 50357(U) Decided on March 12, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
570926/10.

The People of the State of New York, Respondent, - -

against

Alex Brugman, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Laura A. Ward, J.), rendered September 20, 2009, after a nonjury trial, convicting him of attempted petit larceny, and imposing sentence.

Per Curiam.

Judgment of conviction (Laura A. Ward, J.), rendered September 20, 2009, reversed, on the law, the facts, and as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed.

Defendant's conviction of attempted petit larceny (see Penal Law §§ 110.00, 155.25) was not based on legally sufficient evidence and was, in any event, against the weight of the evidence, which showed only that defendant, in broad daylight and over a period of nearly two hours of police observation, traversed a broad swath of the Union Square and Lower East Side areas of Manhattan, peering through the windows and pulling on the door handles of three parked — and presumably locked — cars, and walking away from each car without entering. On these facts, and without more, defendant's larcenous intent with respect to the contents of the third car — the sole charge of which defendant was convicted — was not established beyond a reasonable doubt (cf. People v Lugo [People v Borrero], 26 NY2d 430, 433-434, 436 [1970]; People v Brenia, 277 AD2d 17 [2000], lv denied 96 NY2d 732 [2001]). Nor does the evidence support a finding that defendant came "within dangerous proximity" (People v Bracey, 41 NY2d 296, 300 [1977]) of stealing the (empty) laptop case situated inside the third car (see generally People v DeJesus, 34 Misc 3d 141[A], 2012 NY Slip Op 50083[U][App Term, 2d, 11th & 13th Jud Dists 2012], lv denied 19 NY3d 959 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 12, 2013