People v. Stewart

• Decision Date: 09 December 2021
• Docket Number: 2021-51191
• Parties: The People of the State of New York, Respondent, v. Howard Stewart, Appellant.
• Court: New York Supreme Court

The People of the State of New York, Respondent,
v.
Howard Stewart, Appellant.

No. 2021-51191

Supreme Court of New York, Second Department

December 9, 2021

Unpublished Opinion

2019-877 N CR

PRESENT:: TERRY JANE RUDERMAN, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ.

Langone & Associates, PLLC (Richard M. Langone of counsel), for appellant. Nassau County District Attorney (Andrea M. DiGregorio, Amanda Manning and Benjamin A. Kussman of counsel), for respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Douglas J. LeRose, J.), rendered May 6, 2019. The judgment, upon a jury verdict, convicted defendant of petit larceny, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Following a jury trial, defendant was convicted of petit larceny (Penal Law § 155.25), in that he shoplifted merchandise from a department store. On appeal, defendant argues, first, that the verdict was against the weight of the evidence.

Upon a defendant's request, this court must conduct a weight of the evidence review and, thus, "a defendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 N.Y.3d 342, 348 [2007]). "Necessarily, in conducting its weight of the evidence review, a court must consider the elements of the crime" as charged to the jury, "for even if the prosecution's witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt" (id. at 349). If a finding in favor of defendant "would not have been unreasonable" (People v Curry, 112 A.D.3d 843, 844 [2013]), this court "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (Danielson, 9 N.Y.3d at 348). Nonetheless, great deference is accorded to the jury's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]).

The People proved beyond a reasonable doubt that defendant had committed petit larceny, in that they demonstrated, through witness testimony and video surveillance, that, with the intent to deprive another of property or to appropriate the same to himself, defendant wrongfully took property from the owner thereof (see Penal Law §§ 155.05 [1];155.25; People v Jennings, 69 N.Y.2d 103, 118 [1986]; People v Stapkowitz, 40 A.D.3d 435 [2007]). Although defendant argues on appeal, as he did at trial, that the surveillance video failed to show, and the People failed to prove, how he had concealed the merchandise before exiting the store, concealment is not an element of the offense; rather, it is but one means of inferring larcenous intent (see People v Olivo, 52 N.Y.2d 309, 319-320 [1981]). Upon a review of the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 643 [2006]).

Moreover, where, as here, a defendant fails to request a circumstantial evidence charge and makes no objection to the charge as delivered, any contention pertaining to that charge is not preserved for appellate review (see CPL 470.05 [2]; People v Shackelton, 177 A.D.3d 1163 [2019]; People v Wesley, 175 A.D.3d 1194 [2019]; People v Reyes, 45 A.D.3d 785 [2007]; People v Candelario, 150 A.D.2d 791 [1989]; People v Willis, 107 A.D.2d 830 [1985]). Additionally, defendant's claim that the District Court erred in...