| People v Johnson |
| 2014 NY Slip Op 06545 |
| Decided on September 30, 2014 |
| Appellate Division, First Department |
| 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. |
Decided on September 30, 2014
Mazzarelli, J.P., Andrias, Moskowitz, Manzanet-Daniels, Clark, JJ.
13059 4443/11
v
Marcellus Johnson, Defendant-Appellant.
Cardozo Appeals Clinic, New York (Stanley Neustadter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered March 22, 2012, as amended March 29, 2012, convicting defendant, after a jury trial, of robbery in the third degree (two counts), grand larceny in the fourth degree (three counts) and criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 3½ to 7 years, unanimously affirmed.
We reject defendant's argument that his convictions on counts relating to his taking of the victim's wallet and phone were against the weight of the evidence with respect to the element of larcenous intent. The evidence supports the conclusion that, at the time of the taking, defendant intended to permanently deprive the victim of those items, even though defendant then discarded those items, apparently to divert the victim as defendant escaped with the victim's debit card (see e.g. People v Jacobs, 52 AD3d 432 [1st Dept 2008], lv denied 11 NY3d 833 [2008]).
The court properly admitted portions of telephone calls made by defendant from Rikers Island that were routinely recorded by the Department of Correction. These calls were clearly admissible, notwithstanding that defendant's right to counsel had attached (see Kuhlmann v Wilson, 477 US 436, 459 [1986]; Maine v Moulton, 474 US 159, 176 [1985]; see also People v Campney, 94 NY2d 307 [1999]; People v Harris, 57 NY2d 335, 342 [1982], cert denied 460 US 1047 [1983]). We have considered and rejected defendant's remaining claims regarding the recorded calls.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 30, 2014
CLERK