Opinion
2013-01-8
The PEOPLE of the State of New York, Respondent, v. Allen MACK, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Angie Louie of counsel), for appellant. Allen Mack, appellant pro se.
Robert S. Dean, Center for Appellate Litigation, New York (Angie Louie of counsel), for appellant. Allen Mack, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.
Judgment, Supreme Court, New York County, (Edward J. McLaughlin, J.), rendered November 30, 2010, as amended March 7, 2011, convicting defendant, after a jury trial, of two counts of grand larceny in the fourth degree, and sentencing him to concurrent terms of two to four years, unanimously affirmed.
Defendant did not preserve his claim that his conviction under a count charging larceny from the person of another (Penal Law § 155.30[5] ) was based on legally insufficient evidence, or his related claim concerning the court's charge, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. Since the statute does not contain any element regarding the victim's mental state, the People are not required to prove that the victim of a larceny from the person was aware of the theft. This statute has commonly been applied to thefts from sleeping or otherwise unconscious victims ( see e.g. People v. Taylor, 114 A.D.2d 478, 494 N.Y.S.2d 392 [2d Dept. 1985],lv. denied67 N.Y.2d 890, 501 N.Y.S.2d 1042, 492 N.E.2d 1249 [1986] ). Whether a victim was able to feel something being taken may have some evidentiary significance in a case where there is an issue of whether the victim was in physical contact with the property ( see People v. Haynes, 91 N.Y.2d 966, 672 N.Y.S.2d 845, 695 N.E.2d 714 [1998];People v. Auguste, 283 A.D.2d 373, 728 N.Y.S.2d 8 [1st Dept. 2001] ). Here, there was no such issue. The police saw defendant cut the sleeping victim's pocket and remove his wallet, while defendant's accomplice took a backpack that was leaning against the victim.
We have considered and rejected defendant's pro se claims.