Opinion
2013-06-27
The PEOPLE of the State of New York, Respondent, v. Victor VATAJ, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 1, 2011, 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 1 1/2 to 3 years, unanimously affirmed.
The court properly declined to submit petit larceny as a lesser included offense No reasonable view of the evidence, viewed in the light most favorable to defendant, supported the conclusion that defendant and his codefendants picked up the victim's cell phone from the floor rather than stealing it from his person by removing it from the victim's hand while he was sleeping ( see e.g. People v. Miranda, 66 A.D.3d 509, 885 N.Y.S.2d 906 [1st Dept. 2009],lv. denied13 N.Y.3d 909, 895 N.Y.S.2d 323, 922 N.E.2d 912 [2009];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] ). The victim testified that he had fallen asleep with the phone in his hand, and the police officer testified, without contradiction, that he saw one of the codefendants remove it from the victim's hand while defendant served as a lookout. No evidence supported an inference that anyone picked the phone up from the floor.