PEOPLE v. DESNOYER (2008)

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered July 26, 2006, convicting defendant, after a jury trial, of grand larceny in the fourth degree (three counts) and jostling, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility.

 The court properly denied defendant's request to submit the lesser included offense of petit larceny, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he stole the victim's wallet, but that the wallet did not contain any credit cards (see People v. Negron, 91 N.Y.2d 788, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ).

 The court properly denied defendant's mistrial motion (the only remedy requested), made after a detective testified that he observed defendant going into and out of bars and restaurants on the night before he was arrested for jostling, and several weeks after the events resulting in the grand larceny charges.   There is nothing illegal or immoral, as such, about such activity, regardless of whether it may raise a suspicion of casing-type behavior.   Therefore, this testimony did not constitute evidence of uncharged crimes or prior bad acts (see e.g.People v. Jones, 293 A.D.2d 489, 740 N.Y.S.2d 105 [2002], lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614 [2002];  People v. Mateen, 227 A.D.2d 350, 642 N.Y.S.2d 899 [1996], lv. denied 88 N.Y.2d 989, 649 N.Y.S.2d 396, 672 N.E.2d 622 [1996] ).   Furthermore, it provided relevant background information, completing the narrative of events leading up to defendant's arrest.   In any event, even assuming that this testimony could be considered evidence of prior bad acts, its probative value exceeded its prejudicial effect.   We also note that the court offered to deliver a limiting instruction, which defendant declined.