NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
October 15, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
NELSON MIRANDA, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered February 20, 2008, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Friedman, Moskowitz, Renwick, DeGrasse, JJ.
The court properly declined to submit petit larceny as a lesser included offense. No reasonable view of the evidence, viewed most favorably to defendant, supported a finding that defendant had picked the victim's electronic translator up from the floor, rather than stealing it from her person by removing it from a pocket of her backpack. To the contrary, two police officers testified that they observed defendant remove the translator from the backpack pocket; the officers specifically denied seeing any items fall from the backpack. Moreover, even though there was evidence that the pocket was partially unzipped, there was no evidence that the backpack was ever turned upside down or that anything else occurred that would cause an object to fall out without violating the law of gravity. In light of this record, any inference that the translator fell out of the complainant's backpack would have been both speculative and contrary to the evidence (see People v Holloway, 45 AD3d 477 , lv denied 10 NY3d 766 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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