Opinion
December 4, 1995
Appeal from the Supreme Court, Queens County (Blumenfeld, J.).
Ordered that the judgment is modified, on the law, by reducing the term of imprisonment for attempted grand larceny in the fourth degree to a definite term of one year imprisonment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the evidence adduced at trial was legally sufficient to prove his guilt of attempted grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, and criminal mischief in the fourth degree, beyond a reasonable doubt. The evidence established that the defendant knowingly exercised dominion or control over the stolen vehicle as he was participating in the taking of the automobile when he was observed by the police officers (compare, People v Rivera, 82 N.Y.2d 695, 697; People v Katende, 198 A.D.2d 522, 523). Therefore, the evidence was legally sufficient to prove his guilt of criminal possession of stolen property in the fourth degree, although he was not driving the vehicle (see, People v Bryan, 179 A.D.2d 667, 668; People v Jenkins, 143 A.D.2d 846). The evidence was also legally sufficient to prove that the defendant, acting in concert with the driver, damaged and attempted to steal the automobile (see, Penal Law § 20.00).
The People concede that the defendant was improperly sentenced to an indeterminate term of 1 1/2 to 3 years imprisonment for the conviction of attempted grand larceny in the fourth degree. As the defendant was convicted of attempting to commit a class E felony, the degree of the crime was reduced to a class A misdemeanor (see, Penal Law § 110.05), the sentence for which shall not exceed one year (see, Penal Law § 70.15). Thus, the defendant's sentence on this count must be modified. Santucci, J.P., Altman, Friedmann and Goldstein, JJ., concur.