| People v Jones |
| 2017 NY Slip Op 07199 |
| Decided on October 12, 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 October 12, 2017
Manzanet-Daniels, J.P., Mazzarelli, Webber, Oing, JJ.
4675 4091/13
v
Dameon Jones, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Ronald Alfano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered September 9, 2014, 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 2 to 4 years, unanimously affirmed.
The court properly declined to charge petit larceny as a lesser included offense of fourth-degree grand larceny, because it was not supported by a reasonable view of the evidence, viewed most favorably to defendant. Defendant's theory that he took the victim's phone from an otherwise-empty subway seat was speculative, unsupported by any trial evidence, and contrary to a police officer's testimony that defendant took the phone from the victim's pocket (see People v Vataj, 107 AD3d 610 [1st Dept 2013], lv denied 21 NY3d 1077 [2013]; People v Holloway, 45 AD3d 477 [1st Dept 2007], lv denied 10 NY3d 766 [2008]). Furthermore, a finding that defendant committed petit larceny would have necessarily depended on that officer's testimony, and a reasonable view of the evidence cannot be based on "selective dissection" of a witness's "integrated testimony" (People v Rivera, 23 NY3d 112, 121 [2014]).
Defendant's remaining claims are unpreserved (see People v Parker, 63 AD3d 537, 538 [1st Dept 2009]), and we decline to review them in the interest of justice. As an alternative holding, we find that the prosecutor properly elicited testimony from the arresting officers about "lush workers" who steal from sleeping subway passengers (People v Linton, 139 AD3d 416 [1st Dept 2016], lv denied 28 NY3d 933 [2016]; People v Bright, 111 AD3d 575 [1st Dept 2013], lv denied 22 NY3d 1137 [2014]), and that the challenged portions of the prosecutor's opening statement and summation, while inappropriate, present no basis for reversal (see People v D'Alessandro, 184 AD2d 114 [1st Dept 1992], lv denied 81 NY2d 884 [1993]; People v Black, 110 AD3d 569 [1st Dept 2013], lv denied 23 NY3d 1059 [2014]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 12, 2017
CLERK