State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 106335 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

BRIAN ALLEN,

Appellant.

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Calendar Date: September 16, 2015

Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

__________

Mitch Kessler, Cohoes, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan

Gudesblatt Lamb of counsel) for respondent.

__________

Devine, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered November 26, 2013, upon a verdict

convicting defendant of the crimes of criminal possession of a

weapon in the third degree, grand larceny in the fourth degree

and petit larceny.

On March 30, 2013, while the two were waiting at a bus

station in the City of Kingston, Ulster County, defendant reached

into the coat pocket of the victim and took his wallet. The

victim was able to retrieve his wallet with the aid of two

bystanders, and defendant departed the station in haste. The

police responded and located defendant, who was placed under

arrest and found to have a switchblade knife in his possession. 

Defendant was thereafter charged in an indictment with several
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offenses. Following a jury trial, he was convicted of criminal

possession of a weapon in the third degree, grand larceny in the

fourth degree and petit larceny. County Court sentenced

defendant, a second felony offender, to an aggregate prison term

of 51⁄2 to 11 years. Defendant now appeals.

Defendant initially argues that the convictions for grand

larceny in the fourth degree and petit larceny were against the

weight of the evidence, as the proof did not show that he took

the wallet with the requisite "intent to deprive another of

property or to appropriate the same to himself or to a third

person" (Penal Law § 155.05 [1]; see Penal Law §§ 155.00, 155.25,

155.30 [5]). The proof must show more than "an intent

temporarily to use property without the owner's permission, or

even an intent to appropriate outright the benefits of the

property's short-term use" (People v Jennings, 69 NY2d 103, 119

[1986]). Rather, a defendant must aim "to permanently deprive

the victim[] of the property" (People v Medina, 18 NY3d 98, 105

[2011]; see People v Jennings, 69 NY2d at 118; People v Jacobs,

52 AD3d 432, 433 [2008], lv denied 11 NY3d 833 [2008]; see also

People v Parker, 121 AD3d 1190, 1191 [2014]). "Larcenous intent

is rarely susceptible of proof by direct evidence, and must

usually be inferred from the circumstances surrounding the

defendant's actions" (People v Russell, 41 AD3d 1094, 1096

[2007], lv denied 10 NY3d 964 [2008] [citations omitted]; see

People v Phoenix, 115 AD3d 1058, 1060 [2014], lv denied 23 NY3d

1024 [2014]).

Here, defendant testified that he was seeking to buy a bus

ticket, but did not have the money to do so and had become

"desperate." He had just panhandled a dollar from the victim

and, in so doing, became aware of where the victim kept his

wallet and that there was an additional $50 in it. Defendant

proceeded to sit down next to the victim, jam his hand into the

victim's pocket and take the wallet. Defendant then walked

toward the other side of the bus station while he rifled through

the wallet, which the victim was able to grab back after

defendant became distracted by multiple individuals who demanded

that he return it. Defendant testified that he took the wallet

in a drunken stupor, perceiving it as a game, and denied having
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any interest in permanently depriving the victim of the wallet or

its contents. Those claims flew in the face of his need for

money, however, as well as the testimony of the victim and others

that defendant did not appear to be intoxicated and did not have

a playful – or, for that matter, any – prior relationship with

the victim. The jury rejected the self-serving account offered

by defendant as to the reasons for his behavior and, according

due deference to that credibility determination, we conclude that

the larceny convictions are not against the weight of the

evidence (see People v Joslyn, 103 AD3d 1254, 1255 [2013], lv

denied 21 NY3d 944 [2013]; see also People v Smith, 140 AD2d 259,

260-261 [1988], lv denied 72 NY2d 924 [1988]; People v Burnice,

112 AD2d 642, 643 [1985]).

Defendant next asserts that County Court erred in denying

his application to suppress his admission to the arresting

officer that he had a knife. The statement was made after

defendant had been detained for a considerable period of time

and, in fact, after he had been handcuffed and placed under

arrest. The officer had not administered Miranda warnings at

that point. County Court found the statement to be admissible

because defendant was not in custody when the officer questioned

him regarding weapons on his person but, as the People

commendably concede, that finding was erroneous (see New York v

Quarles, 467 US 649, 655 [1984]; People v Nehma, 101 AD3d 1170,

1172 [2012]; People v Gause, 50 AD3d 1392, 1393-1394 [2008]). 

The People advance a different rationale for upholding the

suppression ruling, but CPL 470.15 (1) prevents us "from

reviewing an issue that was . . . not decided by the trial court"

(People v Ingram, 18 NY3d 948, 949 [2012]; see People v

LaFontaine, 92 NY2d 470, 474 [1998]). We therefore turn to the

issue of whether the failure to suppress the statement was

harmless. 

Defendant does not now dispute that probable cause existed

to justify his arrest and, as a result, the knife itself was

properly recovered in the search of his person that followed

(see Maryland v King, US , , 133 S Ct 1958, 1970-1971

[2013]; People v Hill, 30 AD3d 687, 688 [2006]). At trial,

defendant denied admitting to having the knife and, indeed,
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testified that he did not have "knowing and voluntary possession"

of it, claiming that he had been given the knife months earlier

and had forgotten about it (People v Wood, 58 AD3d 242, 248

[2008], lv denied 12 NY3d 823 [2009]; see Penal Law §§ 15.00 [2];

265.01 [1]; 265.02 [1]; People v Saunders, 85 NY2d 339, 341-342

[1995]). He offered no explanation as to how he could have

failed to notice a switchblade that had been in his coat pocket

for months, however, and "possession suffices to permit the

inference that the possessor knows what he [or she] possesses,

especially, but not exclusively, if it is in his [or her] hands,

on his [or her] person, in his [or her] vehicle, or on his [or

her] premises" (People v Reisman, 29 NY2d 278, 285 [1971], cert

denied 405 US 1041 [1972]; see People v Smith, 32 AD3d 1318, 1320

[2006], lv denied 7 NY3d 929 [2006]). This proof, in short,

constitutes "overwhelming evidence of defendant's guilt, and

there is no reasonable possibility that the jury would have

accepted his incredible testimony, in which he attempted to

explain his possession of" the knife (People v Wilson, 93 AD3d

483, 484 [2012], lv denied 19 NY3d 978 [2012]; see People v

Gause, 50 AD3d at 1394; People v O'Connor, 6 AD3d 738, 739-740

[2004], lvs denied 3 NY3d 639, 645 [2004]). Thus, we find that

the failure to suppress the statement was harmless error.

Contrary to defendant's further contention, County Court

properly allowed the People to submit proof regarding his prior

convictions as part of their case-in-chief. "While evidence of

prior bad acts or uncharged crimes is inadmissible to prove the

crime charged or to show a defendant's propensity to commit this

crime, an exception to this rule exists where the evidence is

admitted to show a defendant's intent, especially after the

defendant has put his or her intent [in] issue" (People v Wright,

5 AD3d 873, 875 [2004], lv denied 3 NY3d 651 [2004] [citations

omitted]; see People v Ingram, 71 NY2d 474, 479 [1988]; People v

Wilson, 100 AD3d 1045, 1047 [2012], lv denied 22 NY3d 998

[2013]). Defendant did just that from the outset of the trial

and, as a result, his prior convictions for various larceny

offenses, robbery in the third degree and criminal possession of

stolen property in the fifth degree became relevant. The record

reflects that County Court properly weighed the probative value

of that evidence against its potential for prejudice, excluded
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the remainder of defendant's criminal history and repeatedly gave

appropriate limiting instructions (see People v Wilson, 100 AD3d

at 1047-1048; People v Carter, 50 AD3d 1318, 1321-1322 [2008], lv

denied 10 NY3d 957 [2008]).

Defendant's remaining challenge to the jury instructions

given by County Court is unpreserved and, in any event, without

merit.

Lahtinen, J.P., Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court