People v Riso (Anthony)

[*1] People v Riso (Anthony) 2013 NY Slip Op 50437(U) Decided on March 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Schoenfeld, JJ
570450/11.

The People of the State of New York, Respondent,

against

Anthony Riso, Defendant-Appellant,

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Diana M. Boyar, J.), rendered May 10, 2011, convicting him, upon a plea of guilty, of petit larceny, and imposing sentence.

Per Curiam.

Judgment of conviction (Diana M. Boyar, J.), rendered May 10, 2011, affirmed.

In the absence of any indication in the plea colloquy that defendant was informed of his right to be prosecuted on an information and knowingly waived that right, the accusatory instrument must be treated as an information for purposes of assessing its facial sufficiency (see People v Kalin, 12 NY3d 225, 228 [2009]). So viewed, the factual portion of the accusatory instrument established reasonable cause to believe and a prima facie case that defendant was guilty of petit larceny (Penal Law § 155.25) by alleging, inter alia, that a store loss prevention employee observed defendant remove 27 t-shirts from a display, "conceal" them in a shopping bag, and "attempt to leave the store in possession of the property and without paying for it." Given the sheer number of t-shirts allegedly concealed by defendant, the store employee's sworn allegations were sufficient for pleading purposes to satisfy the intent and asportation elements of the charged offense, and this even in the absence of specific allegations as to the defendant's movements or whereabouts in the store (see generally People v Olivo, 52 NY2d 309, 315-319 [1981]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 27, 2013