                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   106335
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

BRIAN ALLEN,
                    Appellant.
________________________________


Calendar Date:   September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Mitch Kessler, Cohoes, for appellant.

      D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel) for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered November 26, 2013, upon a verdict
convicting defendant of the crimes of criminal possession of a
weapon in the third degree, grand larceny in the fourth degree
and petit larceny.

      On March 30, 2013, while the two were waiting at a bus
station in the City of Kingston, Ulster County, defendant reached
into the coat pocket of the victim and took his wallet. The
victim was able to retrieve his wallet with the aid of two
bystanders, and defendant departed the station in haste. The
police responded and located defendant, who was placed under
arrest and found to have a switchblade knife in his possession.
Defendant was thereafter charged in an indictment with several
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offenses. Following a jury trial, he was convicted of criminal
possession of a weapon in the third degree, grand larceny in the
fourth degree and petit larceny. County Court sentenced
defendant, a second felony offender, to an aggregate prison term
of 5½ to 11 years. Defendant now appeals.

      Defendant initially argues that the convictions for grand
larceny in the fourth degree and petit larceny were against the
weight of the evidence, as the proof did not show that he took
the wallet with the requisite "intent to deprive another of
property or to appropriate the same to himself or to a third
person" (Penal Law § 155.05 [1]; see Penal Law §§ 155.00, 155.25,
155.30 [5]). The proof must show more than "an intent
temporarily to use property without the owner's permission, or
even an intent to appropriate outright the benefits of the
property's short-term use" (People v Jennings, 69 NY2d 103, 119
[1986]). Rather, a defendant must aim "to permanently deprive
the victim[] of the property" (People v Medina, 18 NY3d 98, 105
[2011]; see People v Jennings, 69 NY2d at 118; People v Jacobs,
52 AD3d 432, 433 [2008], lv denied 11 NY3d 833 [2008]; see also
People v Parker, 121 AD3d 1190, 1191 [2014]). "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 Russell, 41 AD3d 1094, 1096
[2007], lv denied 10 NY3d 964 [2008] [citations omitted]; see
People v Phoenix, 115 AD3d 1058, 1060 [2014], lv denied 23 NY3d
1024 [2014]).

      Here, defendant testified that he was seeking to buy a bus
ticket, but did not have the money to do so and had become
"desperate." He had just panhandled a dollar from the victim
and, in so doing, became aware of where the victim kept his
wallet and that there was an additional $50 in it. Defendant
proceeded to sit down next to the victim, jam his hand into the
victim's pocket and take the wallet. Defendant then walked
toward the other side of the bus station while he rifled through
the wallet, which the victim was able to grab back after
defendant became distracted by multiple individuals who demanded
that he return it. Defendant testified that he took the wallet
in a drunken stupor, perceiving it as a game, and denied having
                              -3-                106335

any interest in permanently depriving the victim of the wallet or
its contents. Those claims flew in the face of his need for
money, however, as well as the testimony of the victim and others
that defendant did not appear to be intoxicated and did not have
a playful – or, for that matter, any – prior relationship with
the victim. The jury rejected the self-serving account offered
by defendant as to the reasons for his behavior and, according
due deference to that credibility determination, we conclude that
the larceny convictions are not against the weight of the
evidence (see People v Joslyn, 103 AD3d 1254, 1255 [2013], lv
denied 21 NY3d 944 [2013]; see also People v Smith, 140 AD2d 259,
260-261 [1988], lv denied 72 NY2d 924 [1988]; People v Burnice,
112 AD2d 642, 643 [1985]).

      Defendant next asserts that County Court erred in denying
his application to suppress his admission to the arresting
officer that he had a knife. The statement was made after
defendant had been detained for a considerable period of time
and, in fact, after he had been handcuffed and placed under
arrest. The officer had not administered Miranda warnings at
that point. County Court found the statement to be admissible
because defendant was not in custody when the officer questioned
him regarding weapons on his person but, as the People
commendably concede, that finding was erroneous (see New York v
Quarles, 467 US 649, 655 [1984]; People v Nehma, 101 AD3d 1170,
1172 [2012]; People v Gause, 50 AD3d 1392, 1393-1394 [2008]).
The People advance a different rationale for upholding the
suppression ruling, but CPL 470.15 (1) prevents us "from
reviewing an issue that was . . . not decided by the trial court"
(People v Ingram, 18 NY3d 948, 949 [2012]; see People v
LaFontaine, 92 NY2d 470, 474 [1998]). We therefore turn to the
issue of whether the failure to suppress the statement was
harmless.

      Defendant does not now dispute that probable cause existed
to justify his arrest and, as a result, the knife itself was
properly recovered in the search of his person that followed
(see Maryland v King,     US    ,    , 133 S Ct 1958, 1970-1971
[2013]; People v Hill, 30 AD3d 687, 688 [2006]). At trial,
defendant denied admitting to having the knife and, indeed,
                              -4-                106335

testified that he did not have "knowing and voluntary possession"
of it, claiming that he had been given the knife months earlier
and had forgotten about it (People v Wood, 58 AD3d 242, 248
[2008], lv denied 12 NY3d 823 [2009]; see Penal Law §§ 15.00 [2];
265.01 [1]; 265.02 [1]; People v Saunders, 85 NY2d 339, 341-342
[1995]). He offered no explanation as to how he could have
failed to notice a switchblade that had been in his coat pocket
for months, however, and "possession suffices to permit the
inference that the possessor knows what he [or she] possesses,
especially, but not exclusively, if it is in his [or her] hands,
on his [or her] person, in his [or her] vehicle, or on his [or
her] premises" (People v Reisman, 29 NY2d 278, 285 [1971], cert
denied 405 US 1041 [1972]; see People v Smith, 32 AD3d 1318, 1320
[2006], lv denied 7 NY3d 929 [2006]). This proof, in short,
constitutes "overwhelming evidence of defendant's guilt, and
there is no reasonable possibility that the jury would have
accepted his incredible testimony, in which he attempted to
explain his possession of" the knife (People v Wilson, 93 AD3d
483, 484 [2012], lv denied 19 NY3d 978 [2012]; see People v
Gause, 50 AD3d at 1394; People v O'Connor, 6 AD3d 738, 739-740
[2004], lvs denied 3 NY3d 639, 645 [2004]). Thus, we find that
the failure to suppress the statement was harmless error.

      Contrary to defendant's further contention, County Court
properly allowed the People to submit proof regarding his prior
convictions as part of their case-in-chief. "While evidence of
prior bad acts or uncharged crimes is inadmissible to prove the
crime charged or to show a defendant's propensity to commit this
crime, an exception to this rule exists where the evidence is
admitted to show a defendant's intent, especially after the
defendant has put his or her intent [in] issue" (People v Wright,
5 AD3d 873, 875 [2004], lv denied 3 NY3d 651 [2004] [citations
omitted]; see People v Ingram, 71 NY2d 474, 479 [1988]; People v
Wilson, 100 AD3d 1045, 1047 [2012], lv denied 22 NY3d 998
[2013]). Defendant did just that from the outset of the trial
and, as a result, his prior convictions for various larceny
offenses, robbery in the third degree and criminal possession of
stolen property in the fifth degree became relevant. The record
reflects that County Court properly weighed the probative value
of that evidence against its potential for prejudice, excluded
                              -5-                  106335

the remainder of defendant's criminal history and repeatedly gave
appropriate limiting instructions (see People v Wilson, 100 AD3d
at 1047-1048; People v Carter, 50 AD3d 1318, 1321-1322 [2008], lv
denied 10 NY3d 957 [2008]).

      Defendant's remaining challenge to the jury instructions
given by County Court is unpreserved and, in any event, without
merit.

     Lahtinen, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
