Opinion
757 KA 18-01372
11-10-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CEDRICK L. MITCHELL, DEFENDANT-APPELLANT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
Appeal from a judgment of the Monroe County Court (Christopher S. Ciaccio, J.), rendered May 16, 2018. The judgment convicted defendant after a nonjury trial of grand larceny in the fourth degree, unauthorized use of a vehicle in the third degree, unlawful imprisonment in the second degree and assault in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of unauthorized use of a vehicle in the third degree and dismissing count two of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of grand larceny in the fourth degree (Penal Law § 155.30 [8]), unauthorized use of a vehicle in the third degree (§ 165.05 [1]), unlawful imprisonment in the second degree (§ 135.05), and assault in the third degree (§ 120.00 [1]). Contrary to defendant's contention, his conviction of grand larceny in the fourth degree is based upon sufficient evidence inasmuch as there is a "valid line of reasoning and permissible inferences" that could lead a rational person to conclude, beyond a reasonable doubt (People v Delamota, 18 N.Y.3d 107, 113 [2011]), that when defendant took the vehicle from the victim, he" 'did so with the intent to deprive the [victim] of [her] vehicle within the meaning of Penal Law § 155.00 (3)'" (People v Hickey, 171 A.D.3d 1465, 1466 [4th Dept 2019], lv denied 33 N.Y.3d 1105 [2019]).
Contrary to defendant's remaining contention, the People met their burden of establishing the amount of restitution, by a preponderance of the evidence, through the victim's testimony at the restitution hearing and supporting documentation (see People v Pugliese, 113 A.D.3d 1112, 1112-1113 [4th Dept 2014], lv denied 23 N.Y.3d 1066 [2014]).
We note, however, that the part of the judgment convicting defendant of unauthorized use of a vehicle in the third degree must be reversed and count two of the indictment dismissed because that offense is a lesser inclusory concurrent count of count one, grand larceny in the fourth degree (see Hickey, 171 A.D.3d at 1466-1467; see generally People v McDonald, 189 A.D.3d 2162, 2163 [4th Dept 2020], lv denied 36 N.Y.3d 1099 [2021]). We therefore modify the judgment accordingly.