Opinion
10-12-2017
The PEOPLE of the State of New York, Respondent, v. Dameon JONES, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Ronald Alfano of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Ronald Alfano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered September 9, 2014, convicting defendant, after a jury trial, of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.
The court properly declined to charge petit larceny as a lesser included offense of fourth-degree grand larceny, because it was not supported by a reasonable view of the evidence, viewed most favorably to defendant. Defendant's theory that he took the victim's phone from an otherwise-empty subway seat was speculative, unsupported by any trial evidence, and contrary to a police officer's testimony that defendant took the phone from the victim's pocket (see People v. Vataj, 107 A.D.3d 610, 967 N.Y.S.2d 644 [1st Dept.2013], lv. denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ; People v. Holloway, 45 A.D.3d 477, 846 N.Y.S.2d 156 [1st Dept.2007], lv. denied 10 N.Y.3d 766, 854 N.Y.S.2d 328, 883 N.E.2d 1263 [2008] ). Furthermore, a finding that defendant committed petit larceny would have necessarily depended on that officer's testimony, and a reasonable view of the evidence cannot be based on "selective dissection" of a witness's "integrated testimony" ( People v. Rivera, 23 N.Y.3d 112, 121, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ).
Defendant's remaining claims are unpreserved (see People v. Parker, 63 A.D.3d 537, 538, 882 N.Y.S.2d 27 [1st Dept 2009] ), and we decline to review them in the interest of justice. As an alternative holding, we find that the prosecutor properly elicited testimony from the arresting officers about "lush workers" who steal from sleeping subway passengers ( People v. Linton, 139 A.D.3d 416, 29 N.Y.S.3d 165 [1st Dept.2016], lv. denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ; People v. Bright, 111 A.D.3d 575, 975 N.Y.S.2d 660 [1st Dept 2013], lv. denied 22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ), and that the challenged portions of the prosecutor's opening statement and summation, while inappropriate, present no basis for reversal (see People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ; People v. Black, 110 A.D.3d 569, 973 N.Y.S.2d 203 [1st Dept.2013], lv. denied 23 N.Y.3d 1059, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ).
MANZANET–DANIELS, J.P., MAZZARELLI, WEBBER, OING, JJ., concur.