In re Cablique P.

Tom, J.P.,

dissents in a memorandum as follows: The material facts are not in dispute. The complainant, a high school student, and his friend, Christopher, were riding a New York City bus at about 3:00 p.m. in the company of a group of four girls when appellant and four other youths boarded. Appellant immediately pointed out Christopher, who was then surrounded by the group. Appellant and the group of boys were talking about an incident two days earlier, wherein appellant had shot a paper clip with a rubber band into Christopher’s face, causing an argument. Someone in the group then told Christopher, “you get off the next stop or if not, we will drag you out.” The complainant and Christopher both testified they were scared and complied with the command. Christopher got off the bus with appellant followed by his four companions. The complainant and the four girls followed. As Christopher was talking to appellant, one of the members of appellant’s group ran forward and, with brass knuckles on his right hand, struck Christopher on the side of his face. As Christopher attempted to defend himself, the rest of the group, including appellant, jumped in and began to beat him all over. The complainant ran to assist his friend. The complainant removed his right arm from his leather jacket to *371free it for fighting, leaving the jacket partly zipped around his waist. At that moment, the assailant wielding the brass knuckles came behind the complainant, pulled his jacket off and then struck him on the right side of his face with the brass knuckles. The complainant was stunned and fell to the ground. The complainant testified, “That’s when the girls came in and they started pulling us. They had pulled Chris and Chris pulled me and we got in the bus.” When the complainant went to the back of the bus, he saw appellant pick up his jacket and give it to one of his friends.

Pursuant to the foregoing factual scenario, the majority finds that “appellant’s simple act of lifting the jacket from the ground and immediately handing it to another” constitutes “absolutely no evidence” of appellant’s intent to deprive the complainant of his property and is therefore insufficient to support Family Court’s finding of petit larceny.

Under Penal Law § 155.25, “A person is guilty of petit larceny when he steals property.” Furthermore, for a person to be guilty of larceny, he must have the “intent to deprive another of property or to appropriate the same to himself or to a third person” (Penal Law § 155.05 [1]). Intent cannot be determined in a vacuum or based on an isolated, innocuous act taken out of context. It is generally inferred from conduct and the totality of the surrounding circumstances (People v Steinberg, 79 NY2d 673, 682 [1992]; People v Bracey, 41 NY2d 296, 301 [1977]; People v Hayes, 163 AD2d 165, 166 [1990], affd 78 NY2d 876 [1991]) and “is an issue of fact that often must be determined only on the basis of the criminal act and the circumstances surrounding its commission” (People v Hernandez, 184 AD2d 439, 440 [1992], citing Bracey at 301). It is for the trier of fact to determine whether the accused possessed the necessary mental culpability to support conviction for a crime (see People v Cabey, 85 NY2d 417, 421-422 [1995]; People v Gill, 265 AD2d 201 [1999], lv denied 94 NY2d 862 [1999]).

The standard of review on this challenge to the sufficiency of the evidence is the same as that applicable in a criminal proceeding—proof of each element of the crime beyond a reasonable doubt (see In re Winship, 397 US 358 [1970]). In deciding whether the evidence is sufficient, an appellate court must determine whether, viewing the evidence most favorably to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Louis C., 6 AD3d 430, 431 [2004]), there is any valid line of reasoning and permissible inferences that could lead a rational trier of fact to the conclusion reached by the court (see Matter of Moises O., 189 AD2d 687 [1993]). If so, the *372disposition must be sustained. This Court, however, must not substitute itself for the factfinder, and great deference should be afforded to the factfinder’s opportunity to view the witnesses, hear their testimony and observe their demeanor (see People v Bleakley, 69 NY2d 490, 495 [1987]).

In the instant matter, there is clearly a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by [the trier of fact] on the basis of the evidence” (id.), including appellant’s conduct and the totality of the surrounding circumstances with respect to the element of intent.

The majority’s speculation that appellant may not have known who owned the jacket or whether it was abandoned is unrealistic and contrary to the evidence. Appellant, who instigated the entire incident, had ample opportunity to observe the complainant before, during and after the altercation, and it is highly implausible that he failed to notice that the “leather” the complainant was wearing was pulled off during the melee by one of the attackers.

It can be reasonably inferred that appellant observed the complainant wearing a leather jacket at all times of the encounter until he departed from the beating without his jacket, which was left lying on the ground in front of appellant and his companions. Further, the evidence permits an inference that appellant, who was in close proximity to all the participants, observed the complainant’s jacket being pulled off. The complainant testified that Christopher was to his right when Christopher was struck by the first attacker. Christopher testified that he was already backing away from his attackers when he observed the complainant’s jacket being pulled off by the attackers, who then struck the complainant, causing him to fall to the ground. As he was backing away, Christopher picked the complainant up. Christopher was asked at the hearing where appellant was when the complainant’s jacket was pulled off. He testified that at that moment his attackers were also backing away from him and that appellant was standing with them. This evidence reflects that Christopher and the group of youths, including appellant, were no longer fighting and were focused on the melee between the complainant and his attacker when the complainant’s jacket was pulled off. Finally, it seems particularly unlikely that, as the majority speculates, the complainant would abandon a leather jacket in the dead of winter (February 7, 2005). Thus, it can be justifiably inferred that the complainant left the jacket behind only in his haste to depart the scene and avoid further injury. This was not a sitúa*373tion where the victims were merely threatened and pushed around; rather they were struck with brass knuckles in the face and head area. The complainant, who had a welt on his head, went to the hospital for treatment the same day and had headaches for the next few days. Christopher, whose mouth was hurting, also went to the hospital and missed one day of school.

The majority finds no evidence tending to show that “appellant’s purpose during the confrontation was to steal complainant’s jacket.” However, this is not the legal standard in assessing larcenous intent. Appellant’s intent must be determined as of the moment of the taking of the jacket (see People v Brooks, 79 NY2d 1043, 1045 [1992], cert denied 506 US 899 [1992]; People v Figueroa, 219 AD2d 509 [1995], lv denied 87 NY2d 901 [1995]).

Here, it is likely true, as appellant asserts, that none of the participants in the incident intended to steal the complainant’s jacket when the incident began. The relevant inquiry, however, is appellant’s intent at the moment the property was taken, not at the moment appellant and his friends told Christopher to get off the bus (see People v Smith, 140 AD2d 259, 261 [1988], lv denied 72 NY2d 924 [1988] [intent element proven even when stolen property was immediately returned, as a “jury might reasonably infer from the evidence that, at the moment (appellant) removed the (property) from the (complainant’s) handbag, she acted with the requisite larcenous intent”]). Under the relevant legal standard, the factfinder was justified in finding that appellant had the intent to deprive the complainant of his leather jacket when he picked it up and handed it to his friend.

The same analysis can be applied to the charge of criminal possession of stolen property. Under Penal Law § 165.40, a person is guilty of criminal possession of stolen property in the fifth degree “when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof.” Further, it is essential in a prosecution for criminal possession of stolen property that the prosecution prove that the property “was stolen by someone” (People v McFarland, 181 AD2d 1007 [1992], lv denied 79 NY2d 1051 [1992]).

Here, that appellant knowingly possessed the complainant’s jacket can be inferred from the circumstance that, in appellant’s presence, the complainant’s jacket had been pulled off with force and without his permission. Further, based on the uncontroverted evidence that appellant picked up the jacket and handed it over to his friend, Family Court reasonably inferred that appellant intended to dispose of the jacket under *374such circumstances as to render it unlikely that the complainant would recover it. Based on the evidence presented, Family Court reasonably inferred that appellant, who was present throughout the incident, had noticed that one of his friends pulled the jacket off the complainant’s person and intended to deprive the complainant of his jacket by picking it up from the ground and handing it to a fellow participant.

Accordingly, the order of disposition should be affirmed.