On August 4, 2005, the Appellate Division upheld the constitutionality of the PFO sentencing scheme and affirmed Washington's adjudication as a persistent felony offender. See People v. Washington, 21 A.D.3d 253, 799 N.Y.S.2d 217, 218 (2005) (citing Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194; Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844). The court nonetheless exercised its discretion to reduce the sentence in the interest of justice to a Class A-I sentence of 15 years to life.

This court has discretion to allow for filing of a late notice of claim. N.Y. Gen. Mun. L. § 50-e(5) ("Section 50-e(5)"); see Tumm v. Town of Eastchester, 799 N.Y.S.2d 217,218 (2d Dep't. 2004). Section 50-e(5) sets forth the factors to consider on such an application.

On August 4, 2005, the Appellate Division affirmed the conviction but modified the sentence to fifteen years to life in the interest of justice.See People v. Washington, 799 N.Y.S.2d 217, 217 (App.Div. 2005). The Appellate Division agreed with the trial court that it was speculative to argue that the wallet fell out of the victim's pocket, and that the defense had been able to make essentially the same argument in any event, so there was no denial of the right to counsel.

App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported below: 21 App. Div. 3d 253, 799 N. Y. S. 2d 217.

September 12, 2005. Appeal from the 1st Dept: 21 AD3d 253 (NY). Court of Appeals of the State of New York.

Defendant's intent to commit a crime could be inferred from the circumstances of his entry and the absence of any evidence to suggest a noncriminal purpose for entering (see People v. Castillo, 47 N.Y.2d 270, 277–278, 417 N.Y.S.2d 915, 391 N.E.2d 997 [1979] ; People v. Gilligan, 42 N.Y.2d 969, 398 N.Y.S.2d 269, 367 N.E.2d 867 [1977] ). While there was some evidence to suggest that defendant was under the influence of drugs, this evidence did not show that he was intoxicated to the point of negating the intent required for burglary and criminal mischief (see Penal Law § 15.25 ).The court gave defendant ample scope in which to argue in summation that he was under the influence of drugs during the crime, and the court only precluded a few assertions that were unsupported by any evidence (see People v. Washington, 21 A.D.3d 253, 799 N.Y.S.2d 217 [1st Dept.2005], lv. denied 5 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 prosecutor's summation comment was inappropriate and he should have avoided making the summation remark to which defendant objected on the ground of burden-shifting.

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] ).

ment upon the evidence adduced at trial and to suggest to the jury whatever inferences and conclusions logically and reasonably may be drawn therefrom. It is, therefore, entirely permissible for counsel not only to highlight the proof favorable to his or her position but, further, to call to the jury's attention evidence that contradicts opposing counsel's theory of the case. In so doing, however, counsel may not become a witness in the case or vouch for the credibility of the witnesses who testified ( see People v. Spence, 92 A.D.3d 905, 905, 938 N.Y.S.2d 622 [2012]; People v. Russell, 307 A.D.2d 385, 386, 761 N.Y.S.2d 400 [2003] ), nor may he or she comment upon matters not in evidence or otherwise engage in speculation ( see People v. Woodrow, 91 A.D.3d 1188, 1190, 936 N.Y.S.2d 778 [2012], lv. denied18 N.Y.3d 999, 945 N.Y.S.2d 654, 968 N.E.2d 1010 [2012]; People v. Paixao, 23 A.D.3d 677, 678, 806 N.Y.S.2d 672 [2005], lv. denied6 N.Y.3d 816, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006]; People v. Washington, 21 A.D.3d 253, 253, 799 N.Y.S.2d 217 [2005], lv. denied5 N.Y.3d 834, 804 N.Y.S.2d 48, 837 N.E.2d 747 [2005], cert. denied546 U.S. 1104, 126 S.Ct. 1047, 163 L.Ed.2d 878 [2006] ). To our analysis, the prosecutor strayed far beyond those well-defined parameters here.

The court properly declined to submit petit larceny as a lesser included offense. There was no reasonable view of the evidence, viewed most favorably to defendant, that defendant did not steal the cell phone from the victim's person ( see People v Washington, 21 AD3d 253, lv denied 5 NY3d 834, cert denied 546 US 1104). Defendant's theory that the phone somehow fell out of the sleeping victim's pocket is both speculative and directly contradicted by the officers' observations. The only reasonable view was that defendant reached into the pocket and removed the phone, while dislodging and abandoning the victim's keys in the process of doing so.