People v Bailey (Lorell)

[*1] People v Bailey (Lorell) 2013 NY Slip Op 51021(U) Decided on June 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Torres, Shulman, JJ
570621/11.

The People of the State of New York, Respondent,

against

Lorell Bailey, 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 July 15, 2011, convicting her, upon a plea of guilty, of disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Diana M. Boyar, J.), rendered July 15, 2011, affirmed.

We find unavailing defendant's challenge to the facial sufficiency of the accusatory instrument charging her with petit larceny (see Penal Law § 155.25) and fifth-degree criminal possession of stolen property (Penal Law § 165.40). The information — comprising the misdemeanor complaint and a store security employee's supporting deposition — alleged, inter alia, that defendant removed six pairs of earrings from a display, "conceal[ed]" them inside her jacket sleeve, and "walk[ed] past more than one open register and move[d] to another floor in the store in possession of the property and without paying for it." Given the number and nature of the items allegedly concealed by defendant, the store employee's sworn allegations were sufficient for pleading purposes to satisfy the asportation element of petit larceny and the intent elements of both theft-related offenses (see People v Gasparik [People v Olivo], 52 NY2d 309, 320, particularly n 8). Where asportation of merchandise is involved, the item(s) "need not be completely removed from the premises as long as there has been some physical movement and an exercise of dominion and control that it inconsistent with the owner's rights" (People v Jensen, 86 NY2d 248, 255 [Titone, J. dissenting] citing Olivo, 52 NY2d 309), factors which were established prima facie in the information filed herein by the People.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: June 28, 2013