| People v Loomis |
| 2008 NY Slip Op 09295 [56 AD3d 1046] |
| November 26, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph A.Loomis, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered October 5, 2007, upon a verdict convicting defendant of the crime of grand larcenyin the fourth degree.
Defendant was found guilty of grand larceny in the fourth degree as a result of a theft ofjewelry and other items. County Court sentenced him, as a second felony offender, to 2 to 4 yearsin prison and imposed a $3,000 fine. On his appeal, defendant argues that the People failed toestablish the value of the stolen property. We must agree.
Although this issue of value was not properly preserved at trial because his counsel madeonly a general motion to dismiss (see People v Finger, 95 NY2d 894, 895 [2000]),defendant asks us to consider it in reviewing the weight of the evidence. Because preservationrules do not apply to such a review (seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Echavarria, 53 AD3d 859, 861 [2008]), we will considerthe evidence adduced as to each of the elements of the crime (see People v Danielson, 9NY3d at 349). To that end, grand larceny in the fourth degree requires that the value of the stolenproperty exceed $1,000 (see Penal Law § 155.30 [1]). This value element isdefined as the "market value of the property at the time and place of the crime, or if such cannotbe satisfactorily ascertained, the cost of replacement of the property within a reasonable timeafter the crime" (Penal Law § 155.20 [1]; see People v Sheehy, 274 AD2d 844, 845[2000], lv denied 95 NY2d 938 [2000]). Significantly, before the testimony [*2]of a witness will satisfy this element, it must include a basis ofknowledge for the witness's statement of value (see People v Lopez, 79 NY2d 402, 404[1992]). Conclusory statements and rough estimates of value are not sufficient (see People vGonzalez, 221 AD2d 203, 204 [1995]).
Here, the only evidence as to value was a single statement by the victim that the items wereworth "approximately $3,600." There is nothing further in the record showing whether he wasfamiliar with valuing the stolen items and whether the value stated was based upon originalpurchase price, current market value, cost of replacement or some other basis. Also, a singlevalue was stated for all items with no review of the description or worth of any individual item.As a result, the jury could not "reasonably infer, rather than merely speculate that the value of thestolen [items] exceeded the statutory threshold" (People v Vandenburg, 254 AD2d 532,534 [1998], lv denied 93 NY2d 858 [1999] [internal quotation marks and citationsomitted]; see People v Burt, 270 AD2d 516, 517 [2000]). Accordingly, the verdict wasagainst the weight of the evidence. We therefore modify the conviction by reducing it to thelesser included offense of petit larceny and remit the matter to County Court for resentencing(see People v Vandenburg, 254 AD2d at 534; People v Jones, 111 AD2d 264,265 [1985]).
We reject defendant's contention that the jury rendered an inconsistent verdict (see Peoplev Schmid, 124 AD2d 896, 897 [1986], lv denied 69 NY2d 955 [1987]), and hisadditional contention that the fine imposed was harsh and excessive is now academic in light ofour remittal for resentencing.
Cardona, P.J., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the judgment ismodified, on the facts, by reducing defendant's conviction of grand larceny in the fourth degree topetit larceny and vacating the sentence imposed thereon; matter remitted to the County Court ofWashington County for resentencing; and, as so modified, affirmed.