| People v Giordano |
| 2008 NY Slip Op 03385 [50 AD3d 467] |
| April 17, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edward Giordano, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered February3, 2006, convicting defendant, after a jury trial, of grand larceny in the fourth degree, andsentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimouslyaffirmed.
Defendant was convicted of fourth-degree grand larceny, which requires a theft of propertyworth in excess of $1,000, based on testimony that he shoplifted two jackets whose tagsindicated selling prices of $1,695 and $410, respectively. Defendant concedes that, in this case,the selling price of the jackets constituted their market value for Penal Law purposes (seePeople v Irrizari, 5 NY2d 142, 146 [1959]). He nevertheless argues that the price tagsconstituted inadmissible hearsay, as did the testimony of two security guards, whose testimony asto the selling price of the jackets was based on the price tags. He further asserts that only sales ormanagement personnel, rather than security guards, would have been competent to testify as toselling price.
We disagree. First, we conclude that the price tags were not hearsay. The tags were notoffered as an assertion of value as distinct from selling price; as defendant concedes, only sellingprice itself is at issue here. Instead, the tags constituted circumstantial evidence of the price ashopper would have been expected to pay for the jackets. Thus, the tags were essentially verbalacts by the store, stating an offer to sell at a particular price (cf. People v Ayala,273 AD2d 40 [2000], lv denied 95 NY2d 863 [2000] [directions given by one participantin the crime to another were nonhearsay circumstantial evidence of accessorial conduct]).Defendant asserts that the price tags did not establish the garments' actual selling price on thedate defendant stole them, since the garments might have been on sale for a lower price that day.However, that factor would not affect the admissibility of the price tags as evidence of sellingprice, but rather the weight to be accorded them, and whether the tags alone could establish aprima facie case with regard to the element of value. Here, the guards testified that they werefamiliar with the store's procedures, with particular reference to an electronic scanning procedurethat verified the correspondence, in this case, between the price tags and the actual selling pricesof the jackets on the day in question. Furthermore, there was no evidence suggesting either orboth of the jackets [*2]was being offered at a lower price thanstated on the tags. The evidence permitted the jury to conclude there was no reasonablepossibility that the actual selling price of the jackets fell below the statutory threshold (see People v Trilli, 27 AD3d 349[2006], lv denied 6 NY3d 899 [2006]). Concur—Andrias, J.P., Friedman, Buckley,Catterson and Acosta, JJ.