People v. Mace

Dec 17, 1982
Versions:91 A.D.2d 864
458 N.Y.S.2d 379
1982 N.Y. App. Div. LEXIS 19778

— Judgment unanimously modified, and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted of grand larceny, third degree, criminal possession of stolen property, second degree (two counts), petit larceny, criminal possession of stolen property, third degree, and criminal possession of a weapon, third degree. The conviction on count seven of the indictment, petit larceny (Penal Law, § 155.25), is reversed and that count dismissed as a lesser included offense of count one, grand larceny, third degree (Penal Law, § 155.30, subd 6; see CPL 1.20, subd 37; 300.40, subd 3, par [b]; see, e.g., People v Perdue, 70 AD2d 477, 481). Similarly, the conviction on count eight, criminal possession of stolen property, third degree (Penal Law, § 165.40), is reversed and that count dismissed as a lesser included offense of count two, criminal possession of stolen property, second degree (Penal Law, § 165.45, subd 4). Trial Term properly denied defendant’s motion for dismissal of the indictment pursuant to CPL 30.30. In defendant’s own moving papers he concedes that the People made a contemporaneous statement of readiness on or before January 29,1982 (see People v Brothers, 50 NY2d 413); thus, the People were ready for trial well within the statutory period. In any event, the case went to trial on March 15, 1982, which, after deducting the delays attributable to the defense, was 178 days after defendant’s arrest and within the six-month limit. While on this record the court erred in charging to the jury the presumption set forth in subdivision 3 of section 265.15 of the Penal Law, we find this error to have been harmless (see People v Crimmins, 36 NY2d 230) in view of the overwhelming evidence, including defendant’s written confession, that he possessed the weapon and was guilty of the crimes for which he was convicted. We find no basis for reversal in the other points raised on appeal. (Appeal from judgment of Onondaga County Court, Anderson, J. — grand larceny, third degree, and other charges.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and Schnepp, JJ.