| People v Hardy |
| 2008 NY Slip Op 09662 [57 AD3d 1100] |
| December 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Steven Hardy,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.), renderedNovember 15, 2006, upon a verdict convicting defendant of the crimes of grand larceny in the thirddegree, criminal possession of stolen property in the third degree and resisting arrest.
Defendant and the victim met each other at a Narcotics Anonymous meeting and began dating in orabout March 2004. They were soon engaged to be married and resided together at the victim's house,located at 634 Clinton Avenue in the City of Albany, until October 2004, when the engagement andtheir relationship was terminated and defendant moved out. According to the victim's testimony, whenshe returned home from work and approached the front door to her house one evening in January 2006at approximately 9:20 p.m., defendant attacked her from inside the home. The altercation then spilledout into the yard, whereupon her next-door neighbor intervened. While speaking on the telephone to a911 operator/dispatcher from her neighbor's foyer, the victim observed defendant enter her house andleave with a garbage bag. The victim testified that, when she returned to her home after beingtransported to the hospital, she discovered that her microwave oven, $180 and a fur coat were missing.
Albany City Police Officer Brian Plante, one of the police officers dispatched to 634 ClintonAvenue, testified that while en route to that address, he and his partner encountered defendant, whomatched the description of the possible suspect given to him by the dispatcher. [*2]At the time Plante first encountered defendant, defendant was wearing afur coat.
Defendant was thereafter charged in a nine-count indictment with burglary in the first degree (twocounts), attempted assault in the first degree (two counts), assault in the second degree (two counts),grand larceny in the third degree, criminal possession of stolen property in the third degree and resistingarrest.[FN1]After a trial, defendant was convicted of grand larceny in the third degree, criminal possession of stolenproperty in the third degree and resisting arrest. Defendant now appeals[FN2]and we affirm.
Initially, we note that defendant's appeal centers on his argument that the People failed to prove aparticular element of the crimes of grand larceny in the third degree and criminal possession of stolenproperty in the third degree, namely, the value of the subject property. Because his counsel made only ageneral motion to dismiss at the close of the People's case, defendant failed to preserve his claimregarding the legal sufficiency of the evidence (see People v Gray, 86 NY2d 10, 20 [1995]),and we decline to exercise our interest of justice jurisdiction (see CPL 470.15).
Next, we reject defendant's contention that his convictions of grand larceny in the third degree andcriminal possession of stolen property in the third degree were against the weight of the evidence. To beconvicted of grand larceny in the third degree and criminal possession of stolen property in the thirddegree, it must be established that defendant stole property and knowingly possessed stolen property,the value of which exceeded $3,000 (see Penal Law §§ 155.35, 165.50). Where"based on all the credible evidence a different finding would not have been unreasonable" (People vBleakley, 69 NY2d 490, 495 [1987]), "the court must [then] weigh conflicting testimony, reviewany rational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions. Based on the weight of the credible evidence, the court then decides whether the jury wasjustified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007] [citation omitted]; see People v Romero, 7 NY3d 633,636 [2006]; People v Bleakley, 69 NY2d at 495; People v Khuong Dinh Pham, 31 AD3d 962, 964 [2006]).
Here, the victim testified that defendant stole $180 from a sugar jar in her home, a new microwaveoven—which she had purchased approximately five days earlier for $79 and had not yetremoved from its box—and the fur coat that defendant was wearing at the time of his arrest. Thevictim also testified that she paid $6,000 for the fur coat in 2001. While defendant correctly asserts thatevidence of the purchase price of the fur coat is insufficient to establish its value (see People vMayerhofer, 283 AD2d 672, 674 [2001]; People v Vandenburg, 254 AD2d 532,533-534 [1998], lv denied 93 NY2d 858 [1999]), the People also provided the testimony of afur [*3]expert, who appraised the value of the fur coat at approximately$8,000. Defendant's contention that the expert's testimony was wrought with inconsistencies is beliedby the record, and the fact that the expert's recollection needed to be refreshed during her testimonydid not preclude the jury from finding her testimony to be credible (see People v Smith, 105AD2d 981 [1984]). Furthermore, notwithstanding the expert's testimony regarding an increase in thefair market value of mink skins at or about the time of the theft—which was approximately fourmonths prior to her appraisal—there was sufficient evidence to provide a reasonable basis forthe jury to find that the value of the coat, alone, exceeded the statutory threshold (see People vMayerhofer, 283 AD2d at 674-675; People v Sheehy, 274 AD2d 844, 845 [2000],lv denied 95 NY2d 938 [2000]). Thus, viewing the evidence in a neutral light and giving"appropriate deference to the jury's superior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d 594, 596 [2006], lv denied 7NY3d 756 [2006]), even if a different finding would not have been unreasonable, we conclude that theverdict was not contrary to the weight of the evidence (see People v Bleakley, 69 NY2d at495).
Cardona, P.J., Spain, Rose and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Prior to trial, County Courtdismissed one count of attempted assault in the first degree as duplicitous and amended two othercharges in a manner not relevant to this appeal.
Footnote 2: Inasmuch as defendant did not raiseany arguments regarding his conviction for resisting arrest on this appeal, he is deemed to haveabandoned that portion of his appeal (seePizarro v State of New York, 19 AD3d 891, 892 [2005], lv denied 5 NY3d 717[2005]).