People v Didonato (Robert)

[*1] People v Didonato (Robert) 2013 NY Slip Op 51308(U) Decided on August 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 9, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Schoenfeld, Shulman, JJ
570824/11.

The People of the State of New York, Respondent,

against

Robert Didonato, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Felicia A. Mennin, J.), rendered July 27, 2011, convicting him, upon a plea of guilty, of petit larceny, and imposing sentence.

Per Curiam.

Judgment of conviction (Felicia A. Mennin, J.), rendered July 27, 2011, reversed, on the law, and the accusatory instrument dismissed.

Vacatur of defendant's guilty plea is mandated since, as the People commendably concede, the conduct ascribed to defendant in the underlying information did not constitute petit larceny, the offense of which defendant was actually convicted (see People v Hightower, 18 NY3d 249 [2011]). Even if established as true, allegations that defendant, while acting in concert with another and in exchange for money, swiped an unlimited MetroCard thereby allowing three unidentified persons to pass through a subway turnstile, did not make out a legally sufficient case that defendant and/or his cohort deprived the Transit Authority of the monies accepted from the subway riders (Hightower at 254-255). Since defendant has already served his sentence, dismissal of the remaining petty offenses is warranted (see Hightower at 253).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 09, 2013