People v. Malcolm

*1069Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered April 8, 2013, convicting him of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

After a trial, the defendant was convicted of grand larceny in the fourth degree based on evidence that, on separate occasions between August 5, 2012, and August 20, 2012, he stole from a Home Depot store merchandise having an aggregate value of more than $1,000. The defendant was also convicted of criminal possession of stolen property in the fifth degree based on the August 20, 2012, incident. The evidence adduced at trial showed that on August 5, 2012, the defendant was observed in the tool corral of a Home Depot store located in College Point, Queens, loading a shopping cart with power tools. He then proceeded to the back of the store where he exited with the cart of power tools through an emergency door by the lumber area. The defendant loaded the power tools into a gray minivan with a black hood, which was waiting with a driver and parked approximately 10 feet from the emergency exit. The defendant then fled in the minivan. A Home Depot asset protection specialist testified that the total value of the stolen merchandise was approximately $940.

On August 13, 2012, the defendant entered the same Home Depot store, filled a shopping cart with two Dyson vacuums, a Dewalt power tool, a Rigid power tool drill set, and a Milwaukee power tool, and exited the store with the items through an emergency exit door located in the rear of the garden area. The defendant loaded the stolen items into the same minivan, which was parked outside the rear garden exit. The asset protection specialist testified that the Dyson vacuums each sold for $499, the Dewalt power tool sold for $299, the Rigid power tool drill set sold for $499, and the Milwaukee power tool sold for $259.

On August 20, 2012, the defendant was observed exiting the minivan in the parking lot of the same Home Depot and entering the store, where he loaded a shopping cart with four power drills. He was apprehended by store security while attempting to exit the store with the merchandise through the fire exit door in the garden area. Another asset protection specialist testified that the total value of the items taken on this date was $996.

A person is guilty of grand larceny in the fourth degree, inter *1070alia, “when he steals property and when . . . [t]he value of the property exceeds one thousand dollars” (Penal Law § 155.30 [ 1]). “[T]he People may prosecute for a single crime a defendant who, pursuant to a single intent and one general fraudulent plan, steals in the aggregate as a felon and not as a petty thief” (People v Cox, 286 NY 137, 145 [ 1941]; see People v Rossi, 5 NY2d 396, 401 [ 1959]; People v Barry, 46 AD3d 1340, 1341 [ 2007]; People v Fayette, 239 AD2d 696, 697 [ 1997]; People v Rosich, 170 AD2d 703 [ 1991]). Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [ 1983]), we find that it was legally sufficient to establish his guilt of grand larceny in the fourth degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on that count was not against the weight of the evidence (see CPL 470.15 [ 5]; People v Romero, 7 NY3d 633 [2006]). The evidence presented at trial demonstrated that the defendant took similar expensive electronic merchandise from the same store on each occasion, under virtually the same circumstances, and with the assistance of the driver of the minivan. Contrary to the position of our dissenting colleague, we find that this evidence sufficiently established that the defendant stole merchandise “with a single [ongoing] intent, carried out in successive stages” (People v Rossi, 5 NY2d at 401), and that this was not merely a series of distinct petty thefts (see People v Daghita, 301 NY 223, 225 [ 1950] [affirming the defendant’s conviction of a single continuing grand larceny where he stole a “considerable quantity of merchandise over a period of time” from the same store and “used a large portion of it to furnish his home and to outfit his family”]; see also People v Henderson, 163 AD2d 888 [ 1990]; cf. People v Seymour, 77 AD3d 976, 980 [ 2010] [insufficient proof that two thefts from the same store constituted a common scheme or plan, where the defendant stole one television during the first incident, a variety of merchandise during the second incident, and each theft was perpetrated in a different manner, since “there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud”]).

Furthermore, we disagree with our dissenting colleague that the evidence of the value of the merchandise taken on August 13, 2012, was insufficient. After viewing the surveillance video, the asset protection specialist testified that she recognized the merchandise the defendant wheeled out of the store and loaded into the minivan. The witness’s testimony concerning the merchandise was consistent with the information obtained *1071from her mobile scanning device, which tracked the store’s inventory. Notably, the total value of the items taken on August 13, 2012, as testified to by the asset protection specialist, standing alone, exceeded the $1,000 threshold necessary to sustain the defendant’s conviction of grand larceny in the fourth degree (see Penal Law § 155.30 [ 1]). To the extent the dissent concludes that the testimony of the asset protection specialist concerning the identity of the items taken on August 13, 2012, was not credible, the witness’s credibility “was an issue primarily for the jury to determine, and we will not substitute our judgment for that of the jurors, who had the advantage of seeing and hearing the witness testify” (People v Sabatini, 130 AD2d 524, 524 [ 1987]; see People v McCarthy, 293 AD2d 490, 491 [ 2002]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d at 620), we find that it was legally sufficient to establish the defendant’s guilt of of criminal possession of stolen property in the fifth degree beyond a reasonable doubt (see People v Olivo, 52 NY2d 309, 321 [1981]; see also People v Yagudayev, 91 AD3d 888, 890-891 [2012]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence (see People v Romero, 7 NY3d at 633).

The defendant’s contention that the sentence imposed was improperly based on the crime of which he was acquitted is unpreserved for appellate review (see CPL 470.05 [2]; People v Dubois, 116 AD3d 878 [2014]) and, in any event, without merit (see People v Morgan, 27 AD3d 579 [2006]; People v Robinson, 250 AD2d 629 [1998]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, without merit. Rivera, J.P., Leventhal and Roman, JJ., concur.