People v Portee (Baliek)

[*1] People v Portee (Baliek) 2010 NY Slip Op 51468(U) [28 Misc 3d 138(A)] Decided on August 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-1053 OR CR.

The People of the State of New York, Respondent,

against

Baliek Portee, Appellant.

Appeal from a judgment of the City Court of Middletown, Orange County (Steven W. Brockett, J.), rendered April 29, 2009. The judgment convicted defendant, after a nonjury trial, of petit larceny.

ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine and surcharges are remitted.

Defendant was charged with petit larceny (Penal Law § 155.25) for allegedly stealing a scale and charger from a classroom at a school where he worked as a night-shift custodian. It was undisputed at trial that defendant removed the subject scale and charger from a classroom during his shift on February 9, 2009 and that school officials recovered those items, stored in the custodian's closet at the school, the next day. Following the nonjury trial, defendant was convicted of the offense alleged.

While exercising our authority to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the trial court's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Nevertheless, we find that, under the particular circumstances here, the verdict of guilt of petit larceny was against the weight of the evidence. We note that "the offense of larceny is not complete, even where there has been a taking or severance of the goods from possession, unless there has been, at the same time, an intent to permanently deprive the owner of his or her property" (People v Archie, 71 AD3d 686 [2010] [internal quotations and citations omitted]; see CPL 155.05 [1]; 155.00 [3]). In our view, the evidence did not establish beyond a reasonable doubt that defendant possessed the requisite intent.

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed. In light of our decision, we do not reach defendant's remaining arguments.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: August 13, 2010