THE PEOPLE OF THE STATE OF NEW YORK, res, v. GUSTAVO VINENT, def-ap

11165. THE PEOPLE OF THE STATE OF NEW YORK, res, v. GUSTAVO VINENT, def-ap — Steven Banks, The Legal Aid Society, New York (Natalie Rea of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for res ——Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered February 10, 2011, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of eight years, unanimously affirmed.

The court properly declined to charge petit larceny as a lesser included offense since there was no reasonable view of the evidence, viewed most favorably to defendant, that he stole merchandise, but did not use force to retain it. Nothing in the People’s case supported such a theory (see People v. Negron, 91 NY2d 788 [1998]), and under the version of the incident presented in his own testimony, defendant did not commit any larceny at all, but was instead attempting to buy the merchandise (see People v. Ruiz, 216 AD2d 63 [1995], affd 87 NY2d 1027 [1996]). There was no rational basis for the jury to find that defendant stole the merchandise, but changed his mind and used force only to “return” it.