Opinion
110331
06-13-2019
The PEOPLE of the State of New York, Respondent, v. Richard SHORTELL, Appellant.
Theodore J. Stein, Woodstock, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), for respondent.
Theodore J. Stein, Woodstock, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), for respondent.
Before: Lynch, J.P., Clark, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J. In 2017, defendant, while intoxicated, took a truck from his employer and drove it into a ditch. In connection with this incident, defendant was charged by indictment with multiple crimes. Following a jury trial, defendant was convicted of, as relevant here, grand larceny in the third degree and criminal possession of stolen property in the third degree. County Court thereafter sentenced defendant, as a second felony offender, to various concurrent prison terms. Defendant appeals. We affirm. Defendant argues that the verdict with respect to the convictions for grand larceny in the third degree and criminal possession of stolen property in the third degree should be reversed because he was too intoxicated to form the requisite intent to commit these crimes. Although defendant does not specify whether he is arguing that the verdict as to these counts was not supported by legally sufficient evidence or was against the weight of the evidence, under either standard of review, defendant's claim is without merit. "Larcenous intent is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant's actions" ( People v. Phoenix, 115 A.D.3d 1058, 1060, 981 N.Y.S.2d 851 [2014] [internal quotation marks, ellipsis and citations omitted], lv denied 23 N.Y.3d 1024, 992 N.Y.S.2d 806, 16 N.E.3d 1286 [2014] ). "Intoxication may be considered by the trier of facts as [negating] the intent required for the conviction of a crime" ( People v. Handly, 102 A.D.2d 922, 922, 477 N.Y.S.2d 512 [1984] [citations omitted]; see People v. Mould, 143 A.D.3d 1186, 1187, 40 N.Y.S.3d 241 [2016], lv denied 28 N.Y.3d 1187, 52 N.Y.S.3d 713, 75 N.E.3d 105 [2017] ).
A witness testified at trial that she observed a truck partially in a ditch and partially blocking the roadway. The witness testified that defendant was in the truck, that she smelled alcohol on his breath and that he was stumbling and slurring his speech. The witness engaged defendant in a conversation to prevent him from driving away and testified that defendant told her that he had stolen the truck from his employer. A state trooper who responded to the scene testified that defendant told him that he had been drinking vodka and that he "took his boss's truck without his permission."
Defendant's employer stated that he had offered defendant a job at his professional detailing business. Prior to one weekend, the employer asked defendant to detail a boat and remove the push bar of a truck that was owned by a client. The employer testified that when he returned to the office after the weekend, defendant was on a couch drunk and the assigned work had not been completed. The employer fired defendant and testified, "It didn't end nicely." After the following weekend, the employer came into the office and noticed cigarette butts and tobacco by the couch and that the truck was missing. The employer spoke with the truck's owner, who confirmed that he did not take the truck from the employer's shop. The employer subsequently learned that the truck had been impounded and defendant had been arrested.
The employer served weekends at the Clinton County jail for a child support violation.
The employer testified that defendant rolled his own cigarettes.
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Viewing the evidence in the light most favorable to the People, the jury could rationally infer that defendant, despite being discovered in an intoxicated state, had the intent to commit the challenged crimes (see People v. Welsh, 124 A.D.2d 301, 303, 508 N.Y.S.2d 278 [1986] ). In this regard, the evidence establishes that defendant took the truck from the business of his employer, who had just fired him, and that defendant admitted to two separate witnesses that he had stolen the truck from his employer. Furthermore, although a contrary result would not have been unreasonable, viewing the evidence in a neutral light, we find that the verdict was not against the weight of the evidence (see People v. Allen, 132 A.D.3d 1156, 1158, 19 N.Y.S.3d 592 [2015], lv denied 26 N.Y.3d 1107, 26 N.Y.S.3d 766, 47 N.E.3d 96 [2016] ; People v. Shuler, 100 A.D.3d 1041, 1042–1043, 952 N.Y.S.2d 687 [2012], lv denied 20 N.Y.3d 988, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012] ; People v. Scott, 47 A.D.3d 1016, 1018–1019, 849 N.Y.S.2d 335 [2008], lv denied 10 N.Y.3d 870, 860 N.Y.S.2d 496, 890 N.E.2d 259 [2008] ; People v. Porter, 35 A.D.3d 907, 909, 826 N.Y.S.2d 465 [2006], lv denied 8 N.Y.3d 926, 834 N.Y.S.2d 516, 866 N.E.2d 462 [2007] ).
Finally, we reject defendant's assertion that he received the ineffective assistance of counsel due to his counsel's failure to request an intoxication charge (see People v. Duffy, 119 A.D.3d 1231, 1234, 990 N.Y.S.2d 346 [2014], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ). To the extent that defendant argues that his counsel failed to advise him of the viability of a possible intoxication defense, such claim is premised upon matters outside the record and, therefore, is more appropriately suited for a motion under CPL article 440 (see People v. Brown, 115 A.D.3d 1115, 1116, 982 N.Y.S.2d 205 [2014], lv denied 24 N.Y.3d 959, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ; People v. McCray, 96 A.D.3d 1160, 1161, 946 N.Y.S.2d 303 [2012], lv denied 19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ).
Lynch, J.P., Clark, Devine and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.