People v. Ferrara

Jun 3, 1986
Versions:121 A.D.2d 159
502 N.Y.S.2d 742
1986 N.Y. App. Div. LEXIS 58191

Judgment of the Supreme Court, New York County (Bell, J.), rendered December 17, 1984, convicting appellant, after a jury trial, of grand larceny in the third degree and sentencing him to an indeterminate term of from 1½ to 3 years’ imprisonment, unanimously reversed, on the law, and the matter remanded for a new trial.

The complaining witness contended that he was carrying his methadone, which he had picked up at a clinic in which he was enrolled, in a briefcase and that the bag was knocked from his hand, with the defendant being identified as the culprit. It was the defendant’s contention that he had previously purchased methadone from the complaining witness which turned out not to be authentic, and that he was remonstrating with him when the briefcase fell to the ground; that the defendant intended to take one of the methadone bottles therein as a substitute when the complaining witness began to raise a rumpus and, in fear, the defendant ran off with the briefcase and, in an abandoned building, removed the methadone and left the briefcase.

The People properly concede that defense counsel’s timely request that petit larceny, a lesser included offense of grand larceny (CPL 1.20 [37]; People v Blume, 48 AD2d 616), be charged, should have been granted, and that a reasonable view of the evidence was that defendant took the briefcase from the ground rather than from the person of the complaining witness. The lesser included offense should have been submitted. (People v Scarborough, 49 NY2d 364, 369-370.) Concur — Murphy, P. J., Kupferman, Asch, Kassal and Rosenberger, JJ.