Opinion
2014-06-17
The PEOPLE of the State of New York, Respondent, v. Joseph RIVERA, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Angie Louie of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Angie Louie of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered July 25, 2012, convicting defendant, after a jury trial, of grand larceny in the fourth degree (seven counts), criminal possession of stolen property in the fourth degree (seven counts) and auto stripping in the third degree, and sentencing him, as a second felony offender, to concurrent terms of two to four years on each of the grand larceny and possession of stolen property convictions, to run consecutively with a term of one year on the auto stripping conviction, unanimously modified, on the law, to extent of directing that all sentences be served concurrently, and otherwise affirmed.
Defendant did not preserve his claim that the larceny and stolen properly convictions were based on legally insufficient evidence, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence supports the conclusion that the victim's wallet was one of the items that defendant took from the victim's car and discarded while fleeing, and defendant's alternative explanations are implausible and unsupported by any evidence ( cf. People v. Washington, 21 A.D.3d 253, 799 N.Y.S.2d 217 [1st Dept.2005],lv. denied5 N.Y.3d 834, 804 N.Y.S.2d 48, 837 N.E.2d 747 [2005],cert. denied 546 U.S. 1104, 126 S.Ct. 1047, 163 L.Ed.2d 878 [2006] ).
The court properly exercised its discretion in determining that counsel's concern about a possibly sleeping juror did not warrant any inquiry. The court properly relied on its own observations, which established that the juror was not sleeping ( see People v. Sanabria, 266 A.D.2d 41, 42, 698 N.Y.S.2d 622 [1st Dept.1999],lv. denied94 N.Y.2d 884, 705 N.Y.S.2d 17, 726 N.E.2d 494 [2000] ).
As the People concede, the definite sentence on the auto stripping conviction should run concurrently with the indeterminate sentences on the other convictions because of the merger provisions of Penal Law § 70.35. MAZZARELLI, J.P., FRIEDMAN, SAXE, FEINMAN, JJ., concur.