| People v Ramos |
| 2017 NY Slip Op 00072 |
| Decided on January 5, 2017 |
| 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 January 5, 2017
Friedman, J.P., Acosta, Mazzarelli, Andrias, Moskowitz, JJ.
2640 907/13
v
Marco Ramos, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Judgment, Supreme Court, New York County (James M. Burke, J.), rendered January 7, 2015, convicting defendant, after a jury trial, of grand larceny in the second degree, and sentencing him to a term of two to six years, unanimously affirmed.
The verdict was not against the weight of the evidence, as viewed in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 348-349 [2007]). In the factual context of the case, the court's reference to lack of
consent in its definition of larceny did not refer to the victim's physical relinquishment of a check, which was undisputedly consensual at the moment of the transfer, but to the victim's lack of consent to defendant's misuse of the funds represented by the check. This is the only way the jury could have understood the charge, which would otherwise make no sense under the facts, and in this Court's role as "thirteenth juror," we conclude that this is how "the elements of the crime [were] charged to the other jurors" (id. at 349), and we view the evidence in that light.
The court properly ruled that the prosecutor's disclosure, after the verdict, of several pages of notes of witness interviews, which had been misfiled, did not require reversal because defendant failed to demonstrate that there was "a reasonable possibility that the non-disclosure materially contributed to the result of the trial" (CPL 240.75).
The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Pavao, 59 NY2d 282, 292 [1983]).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 5, 2017
CLERK