People v. Collado , 146 A.D.3d 708 ( 2017 )

People v Collado (2017 NY Slip Op 00582)

People v Collado

2017 NY Slip Op 00582

Decided on January 31, 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 31, 2017
Mazzarelli, J.P., Manzanet-Daniels, Feinman, Webber, Gesmer, JJ.

2910 6110/11

[*1]The People of the State of New York, Respondent,

v

Roger Collado, Defendant-Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Sharmeen Mazumder of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered October 15, 2012, convicting defendant, after a nonjury trial, of grand larceny in the fourth degree and criminal mischief in the fourth degree, and sentencing him to concurrent terms of five years' probation, unanimously modified, on the law, to the extent of reducing the sentence on the criminal mischief conviction to a term of three years' probation, and otherwise affirmed.

Defendant's challenges to the sufficiency and weight of the evidence supporting his grand larceny conviction are unavailing (see People v Danielson, 9 NY3d 342, 348-349 [2007]). By seizing a fellow bus passenger's phone, refusing to return it and then throwing it out of the bus window into heavy car traffic (which resulted in the phone's destruction) defendant demonstrated an intent to permanently deprive the victim of her phone by withholding it under circumstances that would destroy its economic value, or disposing of it under circumstances rendering it unlikely that the victim would recover it (see Penal Law § 155.00[3]; People v Kirnon, 39 AD2d 666, 667 [1972], affd 31 NY2d 877 [1972]). The evidence supports the conclusion that defendant deliberately deprived the victim of her property, rather than that he was acting recklessly.

As the People concede, the five-year term of probation for the conviction of criminal mischief in the fourth degree, a class A misdemeanor, was unlawful, and we reduce the sentence accordingly.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2017

CLERK