| People v Quigley |
| 2010 NY Slip Op 01217 [70 AD3d 1411] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AllanQuigley, Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Amodeo, J.), renderedJanuary 8, 2008. The judgment convicted defendant, upon a nonjury verdict, of criminal mischiefin the third degree and possession of burglar's tools.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence isunanimously dismissed and the judgment is modified on the law by reducing the conviction ofcriminal mischief in the third degree (Penal Law § 145.05 [2]) to criminal mischief in thefourth degree (§ 145.00 [1]) and as modified the judgment is affirmed, and the matter isremitted to Erie County Court for sentencing on the conviction of criminal mischief in the fourthdegree.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himfollowing a nonjury trial of criminal mischief in the third degree (Penal Law § 145.05 [2])and possession of burglar's tools (§ 140.35) and, in appeal No. 2, he appeals from aresentence pursuant to which he was resentenced as a second felony offender.
With respect to the judgment in appeal No. 1, we agree with defendant that the conviction ofcriminal mischief in the third degree is not supported by legally sufficient evidence inasmuch asthe People did not establish the value of the damage to the church property (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). A conviction of that crime requires proofbeyond a reasonable doubt that the damage to the property exceeds $250 (Penal Law §145.05 [2]; see People v Pluff, 217 AD2d 744 [1995]). The People presented evidenceestablishing that the police found defendant on a ladder against the church in question at night,and that they also found a copper gutter that was bent and folded next to the ladder. The People,however, offered only hearsay testimony to establish the cost of the damage to the property,which is legally insufficient to support the conviction of criminal mischief (see People vJeffries, 151 AD2d 964 [1989], lv denied 74 NY2d 848 [1989]). Nevertheless, theevidence is legally sufficient to establish that defendant intentionally damaged property (seePeople v Civitello, 287 AD2d 784, 786-787 [2001], lv denied 97 NY2d 703 [2002];People v Duran, 238 AD2d 351, 352 [1997]; People v [*2]Brantley, 186 AD2d 1036, 1037 [1992], lv denied 81NY2d 785 [1993]). We therefore modify the judgment in appeal No. 1 by reducing theconviction of criminal mischief in the third degree to criminal mischief in the fourth degree(§ 145.00 [1]), "which requires no proof of value" (Duran, 238 AD2d at 352;see CPL 470.15 [2] [a]), and we modify the resentence in appeal No. 2 by vacating thesentence imposed on count one of the indictment (see CPL 470.15 [2] [a]). We remit thematter to County Court for sentencing on the conviction of criminal mischief in the fourth degree(see CPL 470.20 [4]). We have examined defendant's remaining contentions andconclude that they are without merit. Present—Centra, J.P., Fahey, Peradotto, Carni andLindley, JJ.