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PEOPLE, res, v. MARCO RAMOS, def-ap

2640. PEOPLE, res, v. MARCO RAMOS, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for res — Judgment, Supreme Court, New York County (James M. Burke, J.), rendered January 7, 2015, convicting defendant, after a jury trial, of grand larceny in the second degree, and sentencing him to a term of two to six years, unanimously affirmed.

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2640. PEOPLE, res, v. MARCO RAMOS, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Sheila O’Shea of counsel), for res — Judgment, Supreme Court, New York County (James M. Burke, J.), rendered January 7, 2015, convicting defendant, after a jury trial, of grand larceny in the second degree, and sentencing him to a term of two to six years, unanimously affirmed.

The verdict was not against the weight of the evidence, as viewed in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). In the factual context of the case, the court’s reference to lack ofconsent in its definition of larceny did not refer to the victim’s physical relinquishment of a check, which was undisputedly consensual at the moment of the transfer, but to the victim’s lack of consent to defendant’s misuse of the funds represented by the check. This is the only way the jury could have understood the charge, which would otherwise make no sense under the facts, and in this Court’s role as “thirteenth juror,” we conclude that this is how “the elements of the crime [were] charged to the other jurors” (id. at 349), and we view the evidence in that light.

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