Opinion
April 24, 1990
Appeal from the Supreme Court, New York County (Dennis Edwards, Jr., J.).
Defendant was arrested by a Transit Police decoy unit after participating in the theft of various items of jewelry from a decoy transit officer who feigned drunkenness. Testimony was received from members of the unit that defendant and one Anthony Smith, at the behest of their accomplice Darlene Shim, forced the decoy officer against a wall to facilitate the removal of his jewelry. Officers Henriquez and McLaughlin testified to observing defendant slip off the docoy's watch while Smith and Shim removed his gold rings and neck chains. According to Henriquez and McLaughlin, defendant promptly dropped the watch and a gold medallion taken from the decoy when McLaughlin moved in and called out, "That's enough."
Viewing the evidence in a light most favorable to the People, a reasonable trier of fact could find beyond a reasonable doubt that defendant, both by virtue of his independent actions as well as those taken in concert with his accomplices, was guilty of grand larceny in the fourth degree (People v. Mosley, 112 A.D.2d 812, 814, affd 67 N.Y.2d 985).
In view of the testimony adduced at trial, we find that the evidence plainly warranted the court's accomplice liability instruction to the jury (Penal Law § 20.00; see, Matter of Linda T., 44 A.D.2d 524, 525, affd 36 N.Y.2d 928). However, defendant's claim that the evidence also warranted a jury charge regarding entrapment is unpreserved for appellate review; defendant never asserted entrapment as a defense or requested such a charge (see, CPL 470.05; People v. Whalen, 59 N.Y.2d 273). In any event, a jury charge on such affirmative defense was not required. The evidence, when viewed in a light most favorable to the defendant, offers no reasonable view to support a defense of entrapment (People v. Ventura, 108 A.D.2d 65, affd 66 N.Y.2d 693). Defendant's testimony disavowed any participation in the crime, and it would be an unreasonable view of the evidence to find that defendant was induced or encouraged to commit a crime which he claims he did not commit. Defendant's constitutional argument that he was denied due process because of police misconduct associated with their purported entrapment efforts is likewise unpreserved for review (People v. Michael, 48 N.Y.2d 1, 6) and, in any event, without merit.
Concur — Milonas, J.P., Ellerin, Wallach and Rubin, JJ.