PEOPLE v. JACOBS

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

The PEOPLE of the State of New York, Respondent, v. Damon JACOBS, Defendant-Appellant.

Decided: June 26, 2008

SAXE, J.P., NARDELLI, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Kerry S. Jamieson of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered July 5, 2006, 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 2 to 4 years, unanimously affirmed.

 The verdict was based on legally sufficient evidence and 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 determinations concerning credibility.   Defendant's pattern of conduct toward the victim before, during and after the incident supports the conclusion that, at the time of the theft, he intended to permanently deprive her of her cell phone even though he ultimately returned it as the result of subsequent circumstances (see People v. Ramos, 12 A.D.3d 316, 786 N.Y.S.2d 424 [2004], lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 10, 825 N.E.2d 142 [2005];  People v. Quinones, 162 A.D.2d 175, 556 N.Y.S.2d 306 [1990], lv. denied 76 N.Y.2d 863, 560 N.Y.S.2d 1003, 561 N.E.2d 903 [1990] ).

 The People introduced testimony that defendant returned the phone with an extremely vulgar photograph stored in its memory, and that the photograph's date and time stamp established it was taken while the phone was in defendant's possession.   Although this information was relevant to establish the duration of defendant's possession of the phone and had some bearing on defendant's hostility to the victim, who had rejected his romantic advances, it was not necessary to show the jury the photograph itself, as well as an enlargement thereof.   However, we find that any error in this regard was harmless.   The other evidentiary rulings at issue on appeal were proper exercises of discretion.

We perceive no basis for reducing the sentence.