PEOPLE v. PETERSON (2021)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered May 4, 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 11/212 to 3 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 for disturbing the jury's credibility determinations, including its resolution of minor inconsistencies in testimony.  The weight of the evidence supported the element of larcenous intent (see id. at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1).  The jury could have reasonably inferred that at the time 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 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 court correctly declined to charge the lesser included offense of attempted grand larceny in the fourth degree.  There was no reasonable view of the evidence, viewed most favorably to defendant, that he committed the lesser offense but not the greater.  Although the taking was brief, there was a completed larceny (see People v. Olivo, 52 N.Y.2d 309, 317–319, 438 N.Y.S.2d 242, 420 N.E.2d 40 [1981]).