New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
December 24, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the District Court of Nassau County, First District (William J. O'Brien, J.), rendered October 28, 2010.
People v Pettiford (Sharon)
Decided on December 24, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: LaSALLE, J.P., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon a jury verdict, of petit larceny.
ORDERED that the judgment of conviction is affirmed.
Defendant was convicted, after a jury trial, of petit larceny (Penal Law § 155.25).
Defendant contends that her motion for a mistrial should have been granted after the main prosecution witness, a loss prevention supervisor, testified, during direct examination, among other things, that she had "noticed somebody, known to me, coming into the store" where the incident had occurred, referring to defendant. During cross-examination, the witness testified that defendant "was known to me from prior occasions." Defendant contends that this testimony violated the District Court's Sandoval ruling. We find that the District Court did not improvidently exercise its discretion in denying the motion. Defendant failed to object to the testimony elicited during direct examination. Thus, to that extent, the issue is unpreserved for appellate review (see CPL 470.05 ). The remaining testimony was inadvertently elicited by the defense during cross-examination, and the District Court sustained its own objection to the testimony (see People v Hickman, 60 AD3d 865 ; People v Skinner, 251 AD2d 1013 ; People v Miller, 239 AD2d 787 ; see also People v Gray, 7 AD3d 291 ; People v Bryant, 280 AD2d 403 ).
The District Court also did not improvidently exercise its discretion in admitting into evidence a torn and damaged register receipt (see People v Aska, 91 NY2d 979, 981 ; People v Scarola, 71 NY2d 769, 777 ; People v McGee, 49 NY2d 48, 59 ).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Defendant need not have left the store from which she had stolen property by way of a fraudulent exchange of merchandise, to be found guilty of petit larceny (see People v Olivo, 52 NY2d 309, 318 ; People v Weaver, 89 AD3d 1477, 1478 ). Moreover, upon our independent review of the evidence pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 ; People v Romero, 7 NY3d 633 ).
Where "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation," counsel's performance will not be found ineffective (People v Baldi, 54 NY2d 137, 147 ; see People v Caban, 5 NY3d 143, 152 ; People v Yagudayev, 91 AD3d 888, 890 ). In this case, we find that defendant was afforded the effective assistance of trial counsel (see People v Ennis, 11 NY3d 403, 415 , cert denied 556 US 1240 ).
LaSalle, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 24, 2012
© 1992-2013 VersusLaw Inc.