Opinion
2018-349 N CR
02-28-2019
The PEOPLE of the State of New York, Respondent, v. Marc CIQUERA, Appellant.
Randall D. Unger, for appellant. Nassau County District Attorney (Yael V. Levy and Amanda Manning of counsel), for respondent.
Randall D. Unger, for appellant.
Nassau County District Attorney (Yael V. Levy and Amanda Manning of counsel), for respondent.
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
Appeal from a judgment of the District Court of Nassau County, First District (Susan T. Kluewer, J.), rendered October 2, 2017. The judgment convicted defendant, after a nonjury trial, of petit larceny, and imposed sentence.
ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to 30 days' incarceration; as so modified, the judgment of conviction is affirmed.
Defendant was charged with petit larceny ( Penal Law § 155.25 ) for removing a surveillance camera from the waiting room of a professional office suite in which his domestic partner rented an office. After a nonjury trial, defendant was found guilty of the charge and sentenced to a term of 90 days of incarceration along with a $175 surcharge, a $50 DNA fee and a $25 crime victims' assistance fee.
Viewing the evidence in the light most favorable to the prosecution (see People v. Lynch , 95 NY2d 243, 247 [2000] ; People v. Contes , 60 NY2d 620 [1983] ), we find that it was legally sufficient to establish defendant's guilt of petit larceny. "A person is guilty of petit larceny when he steals property" ( Penal Law § 155.25 ), and a person "steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner thereof" ( Penal Law § 155.05 [1] ). Contrary to defendant's argument, the People satisfied the intent element by showing that defendant had "exercised dominion and control" over the camera "in a manner wholly inconsistent with the owner's continued rights" ( People v. Jennings , 69 NY2d 103, 118 [1986] ; see also People v. Camacho , 288 AD2d 947, 948 [2001] ). Contrary to defendant's further contention, the fact that defendant acted on the advice of counsel did not relieve him of criminal liability (see Penal Law § 15.20 [2] ; cf. People v. Dercole , 72 AD2d 318 [1980] ; People v. Lanza , 10 AD2d 315 [1st Dept 1960], mod 9 NY2d 895 [1961], affd sub nom. Lanza v. State of NY , 370 US 139 [1962] ).
Furthermore, upon exercising our factual review power (see CPL 470.15 [5] ; People v. Danielson , 9 NY3d 342, 348-349 [2007] ), while according great deference to the District Court's credibility determinations (see People v. Lane , 7 NY3d 888, 890 [2006] ; People v. Romero , 7 NY3d 633, 644 [2006] ; People v. Bleakley , 69 NY2d 490, 495 [1987] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Martin , 52 Misc 3d 140[A], 2016 NY Slip Op 51166[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v. Celifie , 47 Misc 3d 133[A], 2015 NY Slip Op 50466[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ).
However, considering all of the circumstances, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence imposed to 30 days' incarceration.
ADAMS, P.J., GARGUILO and RUDERMAN, JJ., concur.