Appellate Division of the Supreme Court of New York, Second DepartmentOct 17, 1994
208 A.D.2d 757 (N.Y. App. Div. 1994)
208 A.D.2d 757617 N.Y.S.2d 799

October 17, 1994

Appeal from the Supreme Court, Kings County (Patterson, J.).

Ordered that the judgment is affirmed.

The defendant argues on appeal that there was legally insufficient evidence to convict him of grand larceny in the fourth degree. Specifically, he claims that the People failed to prove there was a "taking" of the complainant's property, an element of the crime (see, Penal Law § 155.30). According to the defendant, a "taking" only occurs when the perpetrator removes property from the person of the complainant, not when the complainant hands property over to the perpetrator.

This argument is unpreserved for appellate review, as it was not raised in a timely manner (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245). In any event, the defendant's contention is without merit. A person is guilty of grand larceny in the fourth degree

"when he steals property and when * * *

"[t]he property, regardless of its nature and value, is taken from the person of another" (Penal Law § 155.30).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), the defendant placed "something" in the complainant's back and demanded money. The complainant thereupon handed his money to the defendant. "Taking" has been defined as the exercise of dominion and control over property in a manner wholly inconsistent with the victim's ownership rights (see, People v. Jennings, 69 N.Y.2d 103). Property obtained by the threat of the immediate use of force constitutes a "taking" whether the victim hands the perpetrator the property or the perpetrator removes it himself from the victim (see, People v. Sumter, 173 A.D.2d 659; see generally, People v. Corbett, 162 A.D.2d 415). Furthermore, while the defendant points to several inconsistencies in the complainant's testimony, it is well settled that resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).

The defendant's remaining contentions are unpreserved for appellate review or are without merit. Copertino, J.P., Pizzuto, Altman and Hart, JJ., concur.