People v. Gerber

Judgment, Supreme Court, New York County (Juanita Bing Newton, J.), rendered on December 4, 1989, convicting defendant of grand larceny in the fourth degree, and sentencing him to an indeterminate prison term of from 2 to 4 years, unanimously affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The complainant testified that as he entered the men’s room at the IRT 86th Street subway station he saw a man standing at a urinal. Moments later this person reached into complainant’s pants pocket and took money from his wallet while the complainant was seated in an unlocked stall. The complainant identified defendant as the thief in a line-up some 2 Vi months later.

There was sufficient evidence for the jury to conclude that defendant was the perpetrator. (See, People v Contes, 60 NY2d 620, 621.) Neither the lighting conditions nor the partition in the restroom would have prevented the complainant from clearly seeing the perpetrator’s face. The complainant identified defendant at the line-up without hesitation. The jury had ample basis to credit complainant’s testimony, and discounted unsupported suggestions that he had entered the restroom to engage in sexual conduct and had concocted the larceny story. Concur—Rosenberger, J. P., Ellerin Kupferman, Asch and Smith, JJ.