PEOPLE v. CIQUERA (2019)

Appeal from a judgment of the District Court of Nassau County, First District (Susan T. Kluewer, J.), rendered October 2, 2017. The judgment convicted defendant, after a nonjury trial, of petit larceny, and imposed sentence.

ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to 30 days' incarceration; as so modified, the judgment of conviction is affirmed.

Defendant was charged with petit larceny (Penal Law § 155.25) for removing a surveillance camera from the waiting room of a professional office suite in which his domestic partner rented an office. After a nonjury trial, defendant was found guilty of the charge and sentenced to a term of 90 days of incarceration along with a $175 surcharge, a $50 DNA fee and a $25 crime victims' assistance fee.

Viewing the evidence in the light most favorable to the prosecution (see People v. Lynch, 95 NY2d 243, 247 [2000]; People v. Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of petit larceny. “A person is guilty of petit larceny when he steals property” (Penal Law § 155.25), and a person “steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). Contrary to defendant's argument, the People satisfied the intent element by showing that defendant had “exercised dominion and control” over the camera “in a manner wholly inconsistent with the owner's continued rights” (People v. Jennings, 69 NY2d 103, 118 [1986]; see also People v. Camacho, 288 AD2d 947, 948 [2001]). Contrary to defendant's further contention, the fact that defendant acted on the advice of counsel did not relieve him of criminal liability (see Penal Law § 15.20 [2]; cf. People v. Dercole, 72 AD2d 318 [1980]; People v. Lanza, 10 AD2d 315 [1st Dept 1960], mod 9 NY2d 895 [1961], affd sub nom. Lanza v. State of NY, 370 US 139 [1962]).

Furthermore, upon exercising our factual review power (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the District Court's credibility determinations (see People v. Lane, 7 NY3d 888, 890 [2006]; People v. Romero, 7 NY3d 633, 644 [2006]; People v. Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Martin, 52 Misc 3d 140[A], 2016 NY Slip Op 51166[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v. Celifie, 47 Misc 3d 133[A], 2015 NY Slip Op 50466[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).

However, considering all of the circumstances, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence imposed to 30 days' incarceration.

ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.