Opinion
2012-12-20
The PEOPLE of the State of New York, Respondent, v. Premnath DEOLALL, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
ANDRIAS, J.P., SAXE, MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Kibbie F. Payne, J.), rendered October 8, 2009, 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.
Since defendant made only a general motion for a trial order of dismissal, and since the court did not make any ruling that addressed the specific arguments defendant makes for the first time on appeal, defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that 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] ). The evidence supports the conclusion that, at the time and place of the theft ( seePenal Law § 155.30[1] ), the value of the stolen property exceeded the $1,000 threshold for fourth-degree grand larceny. The evidence included the victim's testimony that at the time of the theft he had recently bought the computer for more than twice the statutory threshold and that it was in excellent condition at the time of the crime ( see People v. Geroyianis, 96 A.D.3d 1641, 1644, 946 N.Y.S.2d 803 [4th Dept.2012] [unlikely that computer's value depreciated significantly in nine months], lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012];compare People v. Monclova, 89 A.D.3d 424, 425, 931 N.Y.S.2d 322 [2011] [insufficient proof of value of three-year-old computer], lv. denied18 N.Y.3d 861, 938 N.Y.S.2d 868, 962 N.E.2d 293 [2011] ).
The court properly denied defendant's request for a missing witness charge regarding the victim's mother, because there was no evidence that she could have provided material, noncumulative testimony. The record failed to establish that this witness was in a position to see anything that was relevant to any contestedissue ( see People v. Dianda, 70 N.Y.2d 894, 524 N.Y.S.2d 381, 519 N.E.2d 292 [1987];compare People v. Kitching, 78 N.Y.2d 532, 538, 577 N.Y.S.2d 231, 583 N.E.2d 944 [1991] ). In any event, any error in declining to give the charge was harmless in light of the overwhelming evidence that defendant was the person who took the computer.