PEOPLE v. STAPKOWITZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Joseph STAPKOWITZ, Defendant-Appellant.

Decided: May 22, 2007

TOM, J.P., MAZZARELLI, MARLOW, NARDELLI, McGUIRE, JJ. Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Tawfiq S. Rangwala of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), and Curtis, Mallet-Prevost, Colte & Mosle, LLP, New York (Shannon P. McNulty of counsel), for respondent.

Judgment, Supreme Court, New York County (Philip M. Grella, J.), rendered February 19, 2004, convicting defendant, after a jury trial, of grand larceny in the third degree and criminal possession of stolen property in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   The conclusion is inescapable that defendant was caught in the act of stealing a chandelier worth over $5000, and was not, as he claimed, in the process of buying it (see People v. Olivo, 52 N.Y.2d 309, 438 N.Y.S.2d 242, 420 N.E.2d 40 [1981] ).   Among other things, the evidence showed that defendant stood on a table to remove the chandelier from a fifth-floor ceiling without seeking any assistance, placed it in a bag, falsely told a salesperson he had already paid for it, went to the first floor, passed the cash registers, and, when stopped at the exit by a security guard, fled back to the fifth floor.   The jury could reject defendant's explanations for this behavior.

We find any error with regard to the court's receipt of uncharged crimes evidence to be harmless.