Opinion
No. 570813/12.
10-27-2015
The PEOPLE of the State of New York, Respondent, v. John JONES, Defendant–Appellant.
Opinion
PER CURIAM.
Judgments of conviction (James M. Burke, J.), each rendered June 14, 2012, modified on the law, to vacate the conviction of unauthorized sale of transportation services under docket number 2011CN002141 and to dismiss the count of the accusatory instrument relating thereto; as modified, judgments affirmed.
Defendant did not preserve by specific objections his current claims regarding the legal sufficiency of the evidence supporting his conviction for illegal access to transit authority services (see People v. Gray, 86 N.Y.2d 10 1995 ), and we decline to review them in the interest of justice. Were we to review these claims, we would find the evidence, including defendant's own testimony (see People v. Miranda, 77 AD3d 1323 2010, lv denied 16 NY3d 833 2011 ), was sufficient to support a finding that he lacked “written permission” to sell MetroCard “swipes” and thereby allow others access to the subway platform (21 NYCRR 1050.4[c] ).
Defendant's claim that the People failed to prove the notice element of the charge of unauthorized sale of certain transportation services (see Penal Law § 165.161 ) was also unpreserved for appellate review. However, since the People concede that they failed to prove that notice of the prohibitions against selling access to transportation services appeared “on the face of the farecard” or was “conspicuously posted in [the] transportation facilities” (Penal Law § 165.161 ), we exercise our power to review this contention as a matter of discretion in the interest of justice, and reverse defendant's conviction of this charge (see People v. Butler, 273 A.D.2d 613, 614–615 2000, lv denied 95 N.Y.2d 933 2000 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur