People v. Salters , 75 A.D.2d 901 ( 1980 )

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 27, 1978, convicting him of grand larceny in the third degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The defendant’s contention that the trial court committed reversible error in denying his request to charge petit larceny as a lesser included offense of grand larceny in the third degree is without merit. The jury in analyzing the evidence could have only found either that the money was taken by the defendant from the wallet on the person of the police decoy, or, as defendant claimed, that he found the money on the subway step. A finding by the jury under the former would constitute grand larceny in the third degree (Penal Law, § 155.30, subd 5), and under the latter, the finding of money in a public place would constitute no crime (see People v Cunningham, 73 AD2d 976). The evidence permits no other finding. Under the posture of the evidence in this case it would not have been proper to charge petit larceny (Penal Law, § 155.25) since there is no basis on which a jury might have found defendant guilty of petit larceny without resorting to sheer speculation (People v Mussenden, 308 NY 558; People v Scarborough, 49 NY2d 364). The dissent, on the basis of selective application of portions of the dicta in Scarborough, and by extraction and stitching together of bits of evidence and nonevidence, postulates the possibility of a jury verdict of guilty of petit larceny. In order to arrive at such a finding, the jury would have had to engage in the very practice which juries are admonished to forbear, and which is clearly proscribed by Scarborough and Mussenden, namely, the process of speculation. We have examined the defendant’s other contentions and find them to be without merit. Mollen, P. J., Gibbons and Gulotta, JJ., concur.