People v. Sylvester

Feb 4, 2005
Versions:15 A.D.3d 934
788 N.Y.S.2d 786
2005 NY Slip Op 823
2005 N.Y. App. Div. LEXIS 1002

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered February 25, 2004. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the third degree and criminal possession of stolen property in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal trespass in the third degree (Penal Law § 140.10 [a]) and criminal possession of stolen property in the fifth degree (§ 165.40). Suppression of defendant‘s statements was properly denied by County Court. The evidence does not support the contention that the statements were the result of defendant‘s will having been overborne by official coercion of a physical or psychological nature (see People v Mateo, 2 NY3d 383, 413 [2004], cert denied — US —, 124 S Ct 2929 [2004]; People v Anderson, 42 NY2d 35, 38-41 [1977]; see also Arizona v Fulminante, 499 US 279, 285-288, [1991] reh denied 500 US 938 [1991]; Colorado v Connelly, 479 US 157, 167, 170-171 [1986]). The court did not err in refusing to charge attempted criminal possession of stolen property in the fifth degree as a lesser included offense of criminal possession of stolen property in the fifth degree. That defendant dropped the stolen tools upon being chased does not alter the fact that he had already reduced the tools to his possession (see People v Welsh, 124 AD2d 301, 303-304 [1986]). There is thus no reasonable view of the evidence that defendant was guilty of the lesser crime but not the greater (see id. at 304; see also People v Glover, 57 NY2d 61, 63-64 [1982]; see generally CPL 300.50). The court did not abuse its discretion in ruling that defendant could be cross-examined concerning his recent conviction of petit larceny (see People v Hayes, 97 NY2d 203, 207-208 [2002]; People v Taylor, 11 AD3d 930, 930-931 [2004]). Present—Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.