Opinion
No. 570047/19
03-29-2023
The People of the State of New York, Respondent, v. Kevin Smith, Defendant-Appellant.
Unpublished Opinion
PRESENT: Tisch, J.P., Michael, James, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Suzanne J. Adams, J.), rendered August 30, 2018, convicting him, upon a plea of guilty, of petit larceny, and imposing sentence.
Judgment of conviction (Suzanne J. Adams, J.), rendered August 30, 2018, affirmed.
Since defendant waived prosecution by information, the accusatory instrument is assessed under the reasonable cause standard applicable to a misdemeanor complaint (see People v Dumay, 23 N.Y.3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of petit larceny (see Penal Law § 155.25). The instrument recited that complainant observed defendant take complainant's cellphone "from inside his vehicle," without permission or authority to take or possess the cellphone. These allegations and the reasonable inferences to be drawn from them were sufficient for pleading purposes to establish that defendant "exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights," thereby satisfying the "taking" element of the offense (People v Jennings, 69 N.Y.2d 103, 118 [1986]; see People v Olivo, 52 N.Y.2d 309, 317-318 [1981]; People v Livingston, 150 A.D.3d 448 [2017], lv denied 29 N.Y.3d 1093 [2017]). Furthermore, defendant's larcenous intent is readily inferable from the surrounding circumstances of his actions (see People v Olivo, 52 N.Y.2d at 320 n 8; see also People v Jennings, 69 N.Y.2d at 118). That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry (see People v Deegan, 69 N.Y.2d 976, 979 [1987]).
Since the accusatory instrument was jurisdictionally valid with respect to the sole offense to which defendant pleaded guilty, he is not aggrieved by alleged defects in the controlled substance offense of which he was not convicted (see People v Ruiz, 146 A.D.3d 417 [2017], lv denied 28 N.Y.3d 1188 [2017]).
All concur
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.