Opinion
2012-12-6
The PEOPLE of the State of New York, Respondent, v. John JAMES, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
TOM, J.P., MAZZARELLI, MOSKOWITZ, ABDUS–SALAAM, FEINMAN, JJ.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered September 15, 2010, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree and petit larceny, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. The circumstances of defendant's use of an altered MetroCard supported the inference that he possessed the card with the requisite knowledge and intent. The evidence supports the People's version of the facts, that defendant was aware that a MetroCard with a bent magnetic strip is readily capable of being used for the purpose of selling rides to other persons, and defendant was intentionally taking advantage of that situation in making such sales.
To the extent defendant is claiming that the petit larceny count of the indictment was facially insufficient, that claim is without merit because the count spelled out the elements of that crime with the specificity required for an indictment ( seeCPL 200.50), and defendant is essentially challenging the underlying factual basis for that charge ( see People v. Ogunmekan, 95 A.D.3d 701, 945 N.Y.S.2d 58 [2012],lv. denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012];People v. Greeman, 49 A.D.3d 463, 464, 853 N.Y.S.2d 557 [2008],lv. denied10 N.Y.3d 934, 862 N.Y.S.2d 341, 892 N.E.2d 407 [2008]). To the extent defendant is challenging the legal sufficiency of the evidence, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find it without merit. Defendant's position at trial was that he was guilty of petit larceny, admitting that he sold “swipes” that rightfully belonged to the Transit Authority ( compare People v. Hightower, 18 N.Y.3d 249, 938 N.Y.S.2d 500, 961 N.E.2d 1111 [2011] ).