PEOPLE v. WHITE (2025)

Judgment, Supreme Court, New York County (Robert Mandelbaum, J.), rendered May 4, 2018, as amended August 3, 2018, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of two to four 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];  see also People v. Baque, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 05244 [2024]).  As we concluded on a codefendant's appeal raising the same issue, the weight of the evidence supported the element of larcenous intent (see People v. Peterson, 193 A.D.3d 431, 432, 144 N.Y.S.3d 435 [1st Dept. 2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 512, 170 N.E.3d 386 [2021]).  The jury could have reasonably inferred that at the time that defendant and his codefendant took a backpack from a sleeping subway passenger, they intended to permanently deprive the owner of the backpack (see Penal Law § 155.00), even though they subsequently abandoned it after looking through it (see People v. Ramos, 12 A.D.3d 316, 317, 786 N.Y.S.2d 424 [1st Dept. 2004], lv denied 4 N.Y.3d 767, 792 N.Y.S.2d 10, 825 N.E.2d 142 [2005];  see also People v. McDonald, 91 A.D.3d 515, 516, 937 N.Y.S.2d 184 [1st Dept. 2012], lv denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012]).

The weight of the evidence also supported the taking element.  Defendant's act of removing the victim's backpack from between his knees while he slept was sufficient to establish a taking, because defendant thereby exercised dominion and control over the victim's property, however temporary, in a manner that was inconsistent with the victim's ownership (see People v. Hardy, 26 N.Y.3d 245, 250, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015]).  Thus, although defendant abandoned the backpack, the taking was complete as soon as defendant exercised dominion and control over the backpack by moving it (id.).

As we determined on codefendant's appeal, the court correctly declined to charge the lesser included offense of attempted grand larceny in the fourth degree (Peterson, 193 A.D.3d at 432, 144 N.Y.S.3d 435).  There was no reasonable view of the evidence, viewed in the light most favorable to defendant, that he committed the lesser offense but not the greater where the evidence established a completed larceny.