Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered November 28, 2007, as amended December 3, 2007, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the persistent felony offender adjudication and replacing it with a second felony offender adjudication and reducing the sentence to 2 to 4 years, and otherwise 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.
Mazzarelli, J.P., Nardelli, Catterson, DeGrasse, Roman, JJ.
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 (see generally People v Scarborough, 49 NY2d 364 ), that defendant did not steal a wallet from the victim's person (Penal Law § 155.30), but instead only committed petit larceny by acquiring lost property (Penal Law § 155.05[b]). Defendant posits a theory, unsupported by any evidence, that he picked up the wallet and fled with it after an unidentified person stole the wallet and dropped or discarded it. However, the fast-paced chain of events, with particular reference to the fact that immediately after the theft a witness saw defendant fleeing from the pursuing victim and holding the wallet, placed defendant's alternative theory outside the realm of reasonable possibility. The victim's inability to identify the thief, or to accurately describe him at trial, does not warrant a different conclusion.
We find the sentence excessive to the extent indicated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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