People v. Lindsey

Robert S. Dean, Center for Appellate Litigation, New York (Emilia King–Musza of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.

Gische, J.P., Oing, Kennedy Mendez, Shulman, JJ.

Judgment, Supreme Court, New York County (Guy H. Mitchell, J.), rendered September 11, 2018, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.

Defendant, whose dismissal motion raised a different issue from the issues he raises on appeal, failed to preserve his legal sufficiency claim and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. Defendant's larcenous intent and accessorial liability could be reasonably inferred from the entire course of conduct of defendant and the other two members of what was a three-man team of shoplifters, even if defendant sometimes acted like an innocent shopper (see generally Matter of Juan J., 81 N.Y.2d 739, 593 N.Y.S.2d 768, 609 N.E.2d 121 [1992] ; People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029 [1988] ). The jury's mixed verdict does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).

Defense counsel's response to defendant's attacks on counsel's effectiveness did not amount to taking a position adverse to his client's arguments as might warrant the assignment of new counsel (see People v. Nelson, 7 N.Y.3d 883, 826 N.Y.S.2d 593, 860 N.E.2d 56 [2006] ). At the court's invitation, counsel simply made factual statements explaining his general performance and conceding that, contrary to his client's belief, there was no ground available for challenging defendant's predicate felony status. Moreover, defendant has not demonstrated how he was prejudiced by any of his counsel's statements at any stage of the proceedings (see e.g. People v. Malave, 106 A.D.3d 657, 659, 966 N.Y.S.2d 74 [1st Dept. 2013], lv denied 21 N.Y.3d 1044, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013] ).