Opinion
2014-09-30
The PEOPLE of the State of New York, Respondent, v. Marcellus JOHNSON, Defendant–Appellant.
Cardozo Appeals Clinic, New York (Stanley Neustadter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Cardozo Appeals Clinic, New York (Stanley Neustadter of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), for respondent.
Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered March 22, 2012, as amended March 29, 2012, convicting defendant, after a jury trial, of robbery in the third degree (two counts), grand larceny in the fourth degree (three counts) and criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 3 1/2 to 7 years, unanimously affirmed.
We reject defendant's argument that his convictions on counts relating to his taking of the victim's wallet and phone were against the weight of the evidence with respect to the element of larcenous intent. The evidence supports the conclusion that, at the time of the taking, defendant intended to permanently deprive the victim of those items, even though defendant then discarded those items, apparently to divert the victim as defendant escaped with the victim's debit card ( see e.g. People v. Jacobs, 52 A.D.3d 432, 862 N.Y.S.2d 35 [1st Dept.2008], lv. denied11 N.Y.3d 833, 868 N.Y.S.2d 607, 897 N.E.2d 1091 [2008] ).
The court properly admitted portions of telephone calls made by defendant from Rikers Island that were routinely recorded by the Department of Correction. These calls were clearly admissible, notwithstanding that defendant's right to counsel had attached ( see Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed.2d 364 [1986]; Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 [1985]; see also People v. Campney, 94 N.Y.2d 307, 704 N.Y.S.2d 916, 726 N.E.2d 468 [1999]; People v. Harris, 57 N.Y.2d 335, 342, 456 N.Y.S.2d 694, 442 N.E.2d 1205 [1982], cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803 [1983] ). We have considered and rejected defendant's remaining claims regarding the recorded calls. MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ., concur.