        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

123
KA 13-00675
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL H. JOHNSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DIANE S. MELDRIM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered March 19, 2013. The judgment
convicted defendant, after a nonjury trial, of grand larceny in the
fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
following a bench trial, of grand larceny in the fourth degree (Penal
Law § 155.30 [4]) in connection with the theft of a credit card from
the victim’s purse, which the victim left in her car in the parking
lot of a business while she was in the building. Contrary to
defendant’s contention, Supreme Court properly denied that part of his
omnibus motion seeking to suppress his inculpatory statement to the
police. Defendant’s statement was spontaneous, i.e., it was not
“triggered by police conduct which should reasonably have been
anticipated to evoke a declaration from the defendant” (People v
Lynes, 49 NY2d 286, 295; see People v Witherspoon, 66 AD3d 1456, 1458,
lv denied 13 NY3d 942; cf. People v Lanahan, 55 NY2d 711, 713). We
further conclude that the photo array shown to three eyewitnesses was
not unduly suggestive (see generally People v Chipp, 75 NY2d 327,
335). The court properly determined that the subjects depicted
therein were sufficiently similar in appearance so that the viewer’s
attention was not drawn to any one photograph in such a way as to
indicate that the police were urging a particular selection (see
People v Alston, 101 AD3d 1672, 1673; People v Weston, 83 AD3d 1511,
1511, lv denied 17 NY3d 823).

     Contrary to the contention of defendant, the evidence is legally
sufficient to establish that he stole a credit card. Defendant was
observed in the victim’s vehicle by two witnesses, and the victim
                                 -2-                           123
                                                         KA 13-00675

testified that the reloadable VISA card had approximately $100 of
credit, that it was not in her wallet that was in the vehicle after
defendant exited the vehicle, and that the credit card was cancelled
that day (see People v Howard, 167 AD2d 922, 922, lv denied 77 NY2d
961; see generally People v Bleakley, 69 NY2d 490, 495). Viewing the
evidence in light of the elements of the crime in this bench trial
(see People v Danielson, 9 NY3d 342, 349), we conclude that the court
did not fail to give the evidence the weight it should be accorded
and, thus, we further conclude that the verdict is not against the
weight of the evidence (see People v Lane, 7 NY3d 888, 890; Bleakley,
69 NY2d at 495).




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
