People v Nicholas M.

[*1] People v Nicholas M. 2007 NY Slip Op 51501(U) [16 Misc 3d 134(A)] Decided on July 12, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2002-1652 P CR.

The People of the State of New York, Respondent,

against

Nicholas M. (Anonymous), Appellant.

Appeal from a judgment of the Justice Court of the Town of Kent, Putnam County (J. Peter Collins, J.), rendered October 23, 2002. The judgment adjudicated defendant a youthful offender, upon a jury verdict finding him guilty of petit larceny, and sentenced him to three years' probation with five weekends in jail.

Judgment adjudicating defendant a youthful offender affirmed.

Defendant was found guilty by a jury of having committed petit larceny (Penal Law § 155.25) by stealing a laptop computer from a local Police Department while he was doing community service.

When we view the evidence in this case in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find it legally sufficient to establish defendant's guilt of petit larceny beyond a reasonable doubt. With regard to the issue of intent, the proof amply showed that defendant had the conscious objective to deprive the Police Department of the laptop and to appropriate it to himself (see Penal Law § 15.05 [1]; § 155.05 [1]). His intent to commit the larceny was readily inferable from his furtive conduct and the surrounding circumstances (see People v Thomas, 38 AD3d 1134 [2007]; People v Brunson, 294 AD2d 104 [2002]). Furthermore, there was testimony from a coworker doing the community service to the effect that there was a specific direction from the Police Sergeant supervising the work that no laptop was to be thrown out; that when the Police Sergeant was not present, the coworker observed defendant opening and paying attention to the laptop, and that defendant subsequently admitted to the coworker that he had hidden it. There was also testimony from the Police Sergeant that he told defendant that he could not have the laptop because it was a police computer. In addition, the evidence was sufficient to establish the ownership of the laptop by the Town of Kent within the statutory sense, inasmuch as it showed that the Town had a right to possession superior to any right of the taker, defendant (Penal Law §§ 155.00, 155.05 [5]; People [*2]v Wilson, 93 NY2d 222, 225 [1999]).

Moreover, in the exercise of our factual review power (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]), we find that the verdict of guilt was not against the weight of the evidence. While the Police Sergeant told defendant's mother, who later arrived at the scene, that there had been a "misunderstanding" and that her son had thought the laptop computer to be "garbage," the jury could reasonably and properly accept the Police Sergeant's explanation that he was merely repeating defendant's own version of the incident in an attempt to locate and retrieve the laptop computer. The implicit determination of the jury to credit the People's testimony should not, upon the present record, be set aside, since it had the opportunity to see and hear the witnesses and pass upon their credibility (see People v Bleakley, 69 NY2d at 495). There was no need to give a circumstantial evidence charge since the proof of guilt was established through direct evidence, including defendant's admissions (People v Rumble, 45 NY2d 879, 880 [1978]; People v Rodriguez, 259 AD2d 713, 714 [1999]).

The sentence imposed was not unduly harsh or excessive.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 12, 2007