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People v. Marks

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 10, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DIANE MARKS, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered May 2, 2007, convicting defendant, after a non-jury trial, of robbery in the third degree and grand larceny in the fourth degree, and sentencing her to concurrent terms of 6 months and 5 years' probation, 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.

Tom, J.P., Friedman, Nardelli, Buckley, Richter, JJ.

3459/06

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's determinations concerning credibility. Defendant's claim that intoxication negated her intent to steal the victim's cane was based primarily on her own testimony, which the trier of fact was entitled to discredit. That claim was undermined by prosecution testimony that defendant did not have an odor of alcohol on her breath shortly after the incident, that she walked normally, that she attempted to exculpate herself by claiming the cane had been given to her, that she purposefully swung the cane to prevent one of the witnesses from taking it back and that she hid to avoid apprehension by the police (see e.g. People v Sanchez, 298 AD2d 130 [2002], lv denied 98 NY2d 771 [2002]). We find unpersuasive defendant's argument that she lacked any rational motive for stealing a cane.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091110

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