Opinion
KA 01-02329.
November 19, 2004.
Appeal from a judgment of the Livingston County Court (Gerard J. Alonzo, Jr., J.), rendered August 30, 2001. The judgment convicted defendant, upon a jury verdict, of grand larceny in the third degree.
Before: Hurlbutt, J.P., Kehoe, Gorski, Martoche and Hayes, 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 him following a jury trial of grand larceny in the third degree (Penal Law § 155.35). Contrary to the contention of defendant, there was legally sufficient evidence to convict him for retaining mistakenly delivered funds without taking reasonable measures to return them ( see § 155.05 [2] [b]; see also Matter of Schiano, 128 AD2d 214, 215-216, lv denied 70 NY2d 614; see generally People v. Bleakley, 69 NY2d 490, 495). Defendant's larcenous intent could be inferred from the surrounding circumstances ( see People v. Steinberg, 79 NY2d 673, 682; People v. Lopez, 207 AD2d 1017, 1018, lv denied 84 NY2d 1013). Contrary to the further contention of defendant, County Court did not err in denying his challenges to three prospective jurors for cause ( see CPL 270.20). None of the three prospective jurors manifested a state of mind likely to preclude the rendering of an impartial verdict, and thus we see no reason to disturb the court's determinations concerning the three jurors ( see People v. Chambers, 283 AD2d 904, 905-906, affd 97 NY2d 417; cf. People v. White, 275 AD2d 913, 914). We further conclude that the court did not err in denying defendant's request for a continuance so that standby counsel could take over the defense. Defendant's request was made on the day of trial and appeared to be nothing more than a delaying tactic ( see People v. Arroyave, 49 NY2d 264, 271-272; People v. Povio, 284 AD2d 1011, lv denied 96 NY2d 923; People v. Gayle, 167 AD2d 927, lv denied 77 NY2d 838).
Finally, we reject defendant's contention that there was a Brady violation. The surveillance tape depicting defendant's banking transactions was not exculpatory ( see People v. Zaker, 305 AD2d 978, lv denied 100 NY2d 601, 2 NY3d 809; see generally People v. Cortijo, 70 NY2d 868, 869-870). Moreover, there was no Brady violation in the People's failure to turn over the special machine required to view the surveillance tape; that machine belonged to the bank and was not in the control of the People, and thus the People had no duty to produce the machine for defendant ( see generally People v. Johnson, 195 AD2d 481, 482, lv denied 82 NY2d 850).