Opinion
14825 Ind. No. 1885/15 Case No. 2019-3918
12-14-2021
The PEOPLE of the State of New York, Respondent, v. Joseph CANNON, Defendant–Appellant.
Caprice R. Jenerson, Office of The Appellate Defender, New York (Victorien Wu of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Caprice R. Jenerson, Office of The Appellate Defender, New York (Victorien Wu of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Kern, J.P., Kennedy, Scarpulla, Mendez, Shulman, JJ.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered January 8, 2019, convicting defendant, after a jury trial, of grand larceny in the fourth degree and resisting arrest, and sentencing him to an aggregate term of one to three years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentence be served concurrently with all of defendant's sentences that were imposed on February 1, 2018 in Bronx County, and otherwise 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 credibility determinations. The evidence, including a surveillance video, supports the conclusion that when defendant took a train conductor's radio during an altercation, defendant's intent at the time of the taking was to permanently "deprive" (see Penal Law § 155.00[3] ) the conductor of the radio, notwithstanding that defendant relinquished the radio after struggling for several minutes (see People v. Peterson, 193 A.D.3d 431, 144 N.Y.S.3d 435 [1st Dept. 2021], lv denied 37 N.Y.3d 959, 147 N.Y.S.3d 512, 170 N.E.3d 386 [2021] ; People v. Johnson, 120 A.D.3d 1154, 992 N.Y.S.2d 884 [1st Dept. 2014], affd 27 N.Y.3d 199, 32 N.Y.S.3d 34, 51 N.E.3d 545 [2016] ; People v. Kirnon, 39 A.D.2d 666, 667, 332 N.Y.S.2d 74 [1972], affd 31 N.Y.2d 877, 340 N.Y.S.2d 183, 292 N.E.2d 319 [1972] ). The evidence also supports the conclusion that defendant knew that he was being arrested, and deliberately resisted arrest.
We find the sentence excessive to the extent indicated.