PEOPLE v. FAGAN (2004)

 Defendant appeals from a judgment convicting him following a jury trial of grand larceny in the third degree (Penal Law § 155.35).   Contrary to the contention of defendant, there was legally sufficient evidence to convict him for retaining mistakenly delivered funds without taking reasonable measures to return them (see § 155.05[2][b];  see also Matter of Schiano, 128 A.D.2d 214, 215-216, 515 N.Y.S.2d 356, lv. denied 70 N.Y.2d 614, 524 N.Y.S.2d 432, 519 N.E.2d 343;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's larcenous intent could be inferred from the surrounding circumstances (see People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Lopez, 207 A.D.2d 1017, 1018, 617 N.Y.S.2d 73, lv. denied 84 N.Y.2d 1013, 622 N.Y.S.2d 924, 647 N.E.2d 130).   Contrary to the further contention of defendant, County Court did not err in denying his challenges to three prospective jurors for cause (see CPL 270.20).   None of the three prospective jurors manifested a state of mind likely to preclude the rendering of an impartial verdict, and thus we see no reason to disturb the court's determinations concerning the three jurors (see People v. Chambers, 283 A.D.2d 904, 905-906, 727 N.Y.S.2d 210, affd. 97 N.Y.2d 417, 740 N.Y.S.2d 291, 766 N.E.2d 953;  cf. People v. White, 275 A.D.2d 913, 914, 714 N.Y.S.2d 179).   We further conclude that the court did not err in denying defendant's request for a continuance so that standby counsel could take over the defense.   Defendant's request was made on the day of trial and appeared to be nothing more than a delaying tactic (see People v. Arroyave, 49 N.Y.2d 264, 271-272, 425 N.Y.S.2d 282, 401 N.E.2d 393;   People v. Povio, 284 A.D.2d 1011, 725 N.Y.S.2d 784, lv. denied 96 N.Y.2d 923, 732 N.Y.S.2d 640, 758 N.E.2d 666;  People v. Gayle, 167 A.D.2d 927, 562 N.Y.S.2d 288, lv. denied 77 N.Y.2d 838, 567 N.Y.S.2d 207, 568 N.E.2d 656).

 Finally, we reject defendant's contention that there was a Brady violation.   The surveillance tape depicting defendant's banking transactions was not exculpatory (see People v. Zaker, 305 A.D.2d 978, 759 N.Y.S.2d 281, lv. denied 100 N.Y.2d 601, 766 N.Y.S.2d 177, 798 N.E.2d 361, 2 N.Y.3d 809, 781 N.Y.S.2d 309, 814 N.E.2d 481;  see generally People v. Cortijo, 70 N.Y.2d 868, 869-870, 523 N.Y.S.2d 463, 517 N.E.2d 1349).   Moreover, there was no Brady violation in the People's failure to turn over the special machine required to view the surveillance tape;  that machine belonged to the bank and was not in the control of the People, and thus the People had no duty to produce the machine for defendant (see generally People v. Johnson, 195 A.D.2d 481, 482, 599 N.Y.S.2d 861 lv. denied 82 N.Y.2d 850, 606 N.Y.S.2d 602, 627 N.E.2d 524).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: