SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
February 16, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the District Court of Nassau County, First District (Sondra K. Pardes, J.), rendered November 19, 2009. The judgment, after a non-jury trial, convicted defendant of attempted petit larceny.
People v Haimovici (Lioudmila)
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on February 16, 2011
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ
ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine and surcharges are remitted.
Defendant was charged with petit larceny (Penal Law § 155.25) for allegedly stealing merchandise from a Macy's Department Store. It was undisputed at trial that defendant carried unpaid merchandise into a stall of a restroom within Macy's and was apprehended by a Macy's loss prevention agent immediately upon exiting the stall. Following the non-jury trial, defendant was convicted of the lesser included offense of attempted petit larceny (Penal Law §§ 110.00, 155.25), and the instant appeal ensued.
Defendant's contention that the People's proof at trial varied from their theory as presented in the information is unpreserved for appellate review (see generally People v Udzinski, 146 AD2d 245 ). In any event, although some of the evidence the People presented at trial varied from the factual allegations set forth in the information, defendant had "fair notice of what the People would attempt to prove" (People v Grega, 72 NY2d 489, 496 ).
As to defendant's contention that her conviction was against the weight of the evidence, we note that while exercising our authority to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we accord great deference to the trial court's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ). Nevertheless, we find that, under the particular circumstances here, the verdict of guilt of attempted petit larceny was against the weight of the evidence.
To support defendant's conviction of attempted petit larceny, it was necessary to establish that defendant acted with the specific intent to commit the offense of petit larceny (see People v Dupree, 91 AD2d 1071, 1072 , citing People v Bracey, 41 NY2d 296, 300-301 ). A shoplifter's larcenous intent may generally be inferred from the surrounding circumstances (see People v Olivo, 52 NY2d 309, 320 n 8 ). Factors which have been found to give rise to such an inference include, but are not limited to, concealment of merchandise while in close proximity to or moving towards an exit, possession of a known shoplifting device, removal of a sensor device or price tag, switching price tags and switching personal property with merchandise (see People v Olivo, 52 NY2d at 319-320; People v Stapkowitz, 40 AD3d 435, 436 ). Under the circumstances of this case, the evidence failed to demonstrate beyond a reasonable doubt that defendant possessed the requisite intent.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed. In light of our decision, we do not reach defendant's remaining arguments.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur. Decision
Date:February 16, 2011
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