PEOPLE v. WASHINGTON (2005)

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered January 30, 2003, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a persistent felony offender, to a term of 20 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 15 years to life, and otherwise affirmed.

 The court properly declined to submit petit larceny as a lesser included offense.   There was no reasonable view of the evidence, viewed most favorably to defendant, that defendant did not steal a wallet from the victim's person, but instead only committed petit larceny by acquiring lost property (Penal Law § 155.05[2][b] ).  Nothing in the evidence supported a theory that the victim's wallet somehow fell out of his pocket and was picked up by defendant (see People v. Ortiz, 272 A.D.2d 224, 709 N.Y.S.2d 395 [2000] ).

 Similarly, the court properly precluded defendant from making a summation argument about the wallet falling out of the victim's pocket, since this argument was speculative and not based on any evidence or any reasonable inferences from the evidence (see People v. Tart, 305 A.D.2d 137, 757 N.Y.S.2d 842 [2003], lv. denied 100 N.Y.2d 624, 767 N.Y.S.2d 408, 799 N.E.2d 631 [2003] ).   In any event, the court accorded defendant ample latitude in which to make essentially the same argument, and there was no violation of his right to make a summation and present a defense.

The court properly exercised its discretion in sentencing defendant as a persistent felony offender.   The procedure under which defendant was adjudicated a persistent felony offender is not unconstitutional (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194 [2005];  People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   We find the sentence excessive to the extent indicated.