PEOPLE v. MODI (2023)

Judgment, Supreme Court, New York County (Robert Mandelbaum, J.), rendered July 29, 2022, convicting defendant, after a jury trial, of grand larceny in the first degree, and sentencing him to a term of three to nine 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 to disturb the jury's credibility determinations.  The evidence supports the conclusion that when defendant obtained the diamonds from the complainant for the purported purpose of selling them to Costco, defendant possessed the requisite intent to permanently deprive the complainant of them (Penal Law §§ 155.00[3], [4];  155.05[1]).  Among other things, defendant pawned the diamonds and sold them at a discount to other third parties.  Defendant's subsequent efforts to make payments to the complainant do not vitiate his intent at the time of the takings (see People v. Jacobs, 52 A.D.3d 432, 433, 862 N.Y.S.2d 35 [1st Dept. 2008];  People v. Smith, 140 A.D.2d 259, 260–261, 528 N.Y.S.2d 562 [1st Dept. 1988], lv denied 72 N.Y.2d 924, 532 N.Y.S.2d 858, 529 N.E.2d 189 [1988]).

The court properly declined to instruct the jury on the theory of larceny by false promise (Penal Law § 155.05[2][d]).  The evidence supported a theory of larceny by false pretenses (Penal Law § 155.05[2][a]), particularly with regard to defendant's misrepresentations to the complainant of his relationship with Costco, and the People were entitled to elect between the two theories (see People v. Norman, 85 N.Y.2d 609, 625, 627 N.Y.S.2d 302, 650 N.E.2d 1303 [1995];  People v. Stuart, 51 A.D.3d 547, 548, 858 N.Y.S.2d 158 [1st Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008]).

We perceive no basis for reducing the sentence.