| People v Shannon |
| 2008 NY Slip Op 09493 [57 AD3d 1016] |
| December 4, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Demetrius D.Shannon, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Smith, J.), enteredNovember 21, 2005, upon a verdict convicting defendant of the crime of criminal mischief in the thirddegree.
Following a jury trial, defendant was convicted of one count of criminal mischief in the third degreebased upon proof that he had slashed all four tires on the victim's pickup truck. Defendant now appeals,contending that the prosecution failed to present legally sufficient evidence to establish that he causeddamage of $250 or more to the vehicle (see Penal Law § 145.05 [2]). We affirm.
In a criminal mischief case, the damage to property is generally established by evidence of thereasonable cost of repairing the property (see People v Katovich, 238 AD2d 751, 752[1997]; People v Ladd, 220 AD2d 849, 849-850 [1995], lv denied 87 NY2d 923[1996]). Where the property is not repairable, however, the replacement cost is an appropriatemeasure of the damage (see People vGray, 30 AD3d 771, 772 [2006], lv denied 7 NY3d 848 [2006]; People vCollins, 288 AD2d 756, 758 [2001], lv denied 97 NY2d 752 [2002]; People vDetwiler, 187 AD2d 973, 974 [1992], lv denied 81 NY2d 787 [1993]; see alsoPenal Law § 155.20 [1] ["value" is defined as the cost of replacement if market value cannot beascertained]).[*2]
Here, a police officer testified that the sidewalls of the victim'stires were punctured, and an experienced employee of a tire retailer testified that tires are not repairableif the puncture is in the sidewall. From this testimony, which was unrebutted, the jury could reasonablydraw the inference that the victim's tires could not be repaired, even though the tire retailer's employeehad not examined those tires. Since the employee also testified that the cost of the least expensivereplacement tires for the victim's truck would exceed $500, and the victim confirmed that she actuallypaid such an amount to replace the tires, the evidence was legally sufficient to establish that the damagecaused by defendant was in excess of $250.
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.