PEOPLE v. SANTIAGO (2018)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered August 13, 2015, convicting defendant, after a jury trial, of grand larceny in the third degree, criminal possession of stolen property in the third degree and operating a motor vehicle while under the influence of alcohol, and sentencing him, as a second violent felony offender, to an aggregate term of three to six 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] ).  The evidence supported the conclusion that defendant intended the natural consequences of his behavior, in that he intended to permanently “deprive” the owner of a vehicle, as that term is defined by statute (see Penal Law § 155.00[3];  People v. Kirnon, 39 A.D.2d 666, 667, 332 N.Y.S.2d 74 [1st Dept. 1972], affd 31 N.Y.2d 877, 340 N.Y.S.2d 183, 292 N.E.2d 319 [1972] ).  The evidence does not support a finding that defendant was so intoxicated as to be unable to form the requisite intent.

The court's rulings concerning questioning of prospective jurors by the prosecutor and defense counsel were provident exercises of discretion (see People v. Jean, 75 N.Y.2d 744, 551 N.Y.S.2d 889, 551 N.E.2d 90 [1989];  People v. Boulware, 29 N.Y.2d 135, 324 N.Y.S.2d 30, 272 N.E.2d 538 [1971], cert denied 405 U.S. 995, 92 S.Ct. 1269, 31 L.Ed.2d 463 [1972] ), as was its denial of a mistrial motion made on grounds relating to the voir dire.  The prosecutor's hypotheticals explored whether prospective jurors would be able to draw inferences from defendant's behavior and the surrounding circumstances to determine his intent, and these hypotheticals were not unduly prejudicial.  Furthermore, the record does not support defendant's claim that the prosecutor misstated the law.  On the contrary, defense counsel did make misleading statements about the law, causing the court to take appropriate actions that were not prejudicial (see People v. Garrett, 231 A.D.2d 428, 647 N.Y.S.2d 81 [1st Dept. 1996], lv denied 89 N.Y.2d 864, 653 N.Y.S.2d 287, 675 N.E.2d 1240 [1996];  People v. Cummings, 162 A.D.2d 142, 144, 556 N.Y.S.2d 867 [1st Dept. 1990], lv denied 76 N.Y.2d 985, 563 N.Y.S.2d 773, 565 N.E.2d 522 [1990] ).

Defendant's challenges to the prosecutor's opening statement and summation are unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

We perceive no basis for reducing the sentence.