Opinion
KA 01-00898
May 3, 2002.
Appeal from a judgment of Ontario County Court (Harvey, J.), entered March 16, 2001, convicting defendant after a jury trial of, inter alia, grand larceny in the fourth degree.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HAYES, WISNER, SCUDDER, AND KEHOE, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting her following a jury trial of grand larceny in the fourth degree (Penal Law § 155.30) and endangering the welfare of a child (§ 260.10 [1]) and sentencing her to concurrent terms of incarceration, the longest of which is an indeterminate term of 1 to 3 years. The conviction stems from an incident in which defendant and others enlisted the aid of a 12-year-old boy in stealing $2,300 worth of merchandise from a department store. County Court properly denied defendant's request to charge attempted grand larceny in the fourth degree as a lesser included offense of grand larceny in the fourth degree. When viewed in the light most favorable to defendant ( see People v. Randolph, 81 N.Y.2d 868, 869; People v. Hamilton, 234 A.D.2d 974, lv denied 89 N.Y.2d 1093), there is no reasonable view of the evidence that defendant was guilty of only an attempted larceny and not a completed larceny ( see generally CPL 300.50; People v. Glover, 57 N.Y.2d 61, 63; People v. Green, 56 N.Y.2d 427, 430, rearg denied 57 N.Y.2d 775). A "taking of property in the self-service store context can be established by evidence that a customer exercised control over merchandise wholly inconsistent with the store's continued rights," irrespective of whether the property actually was removed from the premises ( People v. Olivo, 52 N.Y.2d 309, 321, rearg denied 53 N.Y.2d 797; see People v. Stringfellow, 176 A.D.2d 447, 448, lv denied 79 N.Y.2d 864; People v. Basir, 141 A.D.2d 745, 745, lv denied 72 N.Y.2d 915).
The court's Sandoval ruling did not constitute an abuse of discretion. The court properly balanced the probative worth of the prior convictions against their potential for prejudice ( see People v. Walker, 83 N.Y.2d 455, 459; People v. Matta, 286 A.D.2d 944; People v. Laraby, 219 A.D.2d 817, lv denied 88 N.Y.2d 937). The prior larceny convictions were highly probative of defendant's dishonesty ( see People v. Freeney, ___ A.D.2d ___ [decided Feb. 1, 2002]; People v. Willis, 282 A.D.2d 882, 883, lv denied 96 N.Y.2d 869), and inquiry into those larcenies was not barred merely because the prior criminal conduct was similar to the instant charge ( see People v. Pavao, 59 N.Y.2d 282, 292; People v. Malave, 288 A.D.2d 237; People v. Castaldi, 209 A.D.2d 961, lv denied 84 N.Y.2d 1029).
We have considered the remaining contentions of defendant, including her challenge to the severity of the sentence, and conclude that they are without merit.