The People of the State of New York, Respondent, v. Hardy Graves, Appellant

The People of the State of New York, Respondent, v Hardy Graves, Appellant. [MAJORITY] Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The evidence, when viewed in the light most favorable to the People (see, People v Ford, 66 NY2d 428, 437), was legally sufficient to establish defendant’s guilt of grand larceny in the fourth degree under subdivision (5) of section 155.30 of the Penal Law for stealing the victim’s car keys from her person. We, however, agree with defendant that the People’s proof was insufficient to sustain his conviction of grand larceny in the fourth degree under subdivision (8) of section 155.30 for stealing the victim’s car and that conviction must be reversed. The People’s proof that defendant stole the victim’s vehicle was entirely circumstantial. The evidence established that on November 23, 1987 defendant stole from the victim a ring of keys, which included her car keys, and that the next time the victim saw her car, it had been in an accident. No evidence was submitted by the People to establish when the car was stolen or that it was ever in defendant’s possession. Further, the victim acknowledged that when defendant stole her key ring he already possessed a set of her car keys, thus negating any inference that defendant stole the key ring for the purpose of stealing the car. The evidence is insufficient to exclude to a moral certainty every other reasonable hypothesis than that defendant, rather than another, stole the car (see, People v Colvin, 97 AD2d 972). (Appeal from judgment of Onondaga County Court, Mulroy, J. — grand larceny, fourth degree.) Present — Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.