| People v Rodriguez |
| 2015 NY Slip Op 01179 |
| Decided on February 10, 2015 |
| 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 February 10, 2015
Sweeny, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.
14193 2604/11
v
Rafael Rodriguez, Defendant-Appellant.
Scott Rosenberg, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered on or about September 28, 2011, convicting defendant, after a jury trial, of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to an aggregate term of two to four years, unanimously affirmed.
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 jury's credibility determinations. The evidence established that defendant took the victim's property by reaching into her pocket, and the alternative scenario posited by defendant is speculative and unsupported by any evidence.
Defendant's belated mistrial motion did not preserve his claim regarding the court's failure to instruct the deliberating jurors pursuant to CPL 270.40 and 310.10 before releasing them for lunch. The record does not support defendant's assertion that he was prevented from raising the issue at a time when the error could have been avoided. We decline to review this unpreserved issue in the interest of justice. As an alternative holding, we find no basis for reversal (see CPL 470.05[1]). The court properly exercised its discretion in denying defendant's mistrial motion, particularly because it had already given the jury instructions, throughout the [*2]trial, that adequately conveyed the necessary admonitions (see People v Williams, 46 AD3d 585 [2d Dept 2007], lv denied 10 NY3d 772 [2008]). Furthermore, defendant would not accept any remedy other than a mistrial.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 10, 2015
CLERK