People v. Resto

DECISION & ORDER

*1  Appeal from a judgment of the City Court of Newburgh, Orange County (E. Loren Williams, J.), rendered January 5, 2016. The judgment convicted defendant, after a nonjury trial, of petit larceny.Per CuriamORDERED that the judgment of conviction is affirmed.The People charged defendant, in a felony complaint, with grand larceny in the fourth degree (Penal Law §155.30 [5]), alleging that, in the course of an altercation with the complainant, defendant placed her in a headlock and stole her cell phone. The charge was subsequently reduced to petit larceny, a misdemeanor (Penal Law §155.25). At a nonjury trial, the complainant testified to the aforementioned facts and that, after the incident, a friend had gone to defendant’s home, asked for the phone’s return, and repeatedly dialed the complainant’s phone number, which had elicited telephone answering sounds from defendant’s pocket. The complainant further testified that defendant had stated to the friend that he would return the phone, but, according to the complainant, defendant never did. In the course of his own testimony, defendant admitted to the altercation and that the complainant’s friend had contacted him with respect to the phone, but denied stealing it. The complainant and defendant were the only witnesses. At the conclusion of the People’s case, defense counsel moved to dismiss, arguing that the complainant’s testimony was insufficiently credible to support a conviction. The court denied the motion. After presenting defendant’s testimony, counsel did not renew the motion. On summation, counsel offered several grounds as to why defendant’s testimony should be credited over that of the complainant. In its decision after trial, the court, making no reference to the complainant’s testimony with respect to what her friend had reported to her of the encounter with defendant, and noting that the case presented simply an issue of competing credibilities, convicted defendant of petit larceny.On appeal, defendant argues that the evidence is legally insufficient to support the conviction, that the conviction is against the weight of the evidence, and that he was denied the