| People v Seymour |
| 2010 NY Slip Op 07794 [77 AD3d 976] |
| October 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidSeymour, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.),rendered February 13, 2008, convicting him of grand larceny in the fourth degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, on the law, by reducing the defendant's conviction ofgrand larceny in the fourth degree to petit larceny, and vacating the sentence imposed thereon; asso modified, the judgment is affirmed, and the matter is remitted to the County Court, DutchessCounty, for sentencing to time served on the conviction for petit larceny.
The defendant's conviction arises from two incidents in which he allegedly stole merchandisefrom a Home Depot store. The defendant was charged with one count of grand larceny in thefourth degree, based, inter alia, on his having taken property with a value of over $1,000 in an"ongoing course of conduct and common plan and scheme." After a pretrial hearing, the CountyCourt denied that branch of the defendant's omnibus motion which was to suppress identificationtestimony. At the hearing, the County Court also ruled that if the defendant chose to testify attrial, the prosecutor could impeach him with evidence of the fact of one felony and sevenmisdemeanor convictions, but could not elicit the specific charges of which the defendant hadbeen convicted, nor the underlying facts leading to the prior convictions.
At trial, the defendant's nephew testified that he accompanied the defendant to the store ontwo dates. The nephew testified that on the first date, he and the defendant placed a television ona cart. While the defendant spoke to a store employee, his nephew wheeled the cart out of thestore, and then the defendant followed. A store cashier testified that she witnessed thisoccurrence, and she identified the defendant at trial. The cashier also testified that after thedefendant left the store, she looked up a price of televisions on a display, since she "recognizedthe front of the box" of those televisions. The cashier indicated that the sale price of thetelevisions on the display was $1,999.97. The cashier did not know the model number or name ofthe television that the defendant allegedly took. The People introduced no further evidence as tothe specific type of television that was allegedly taken, nor as to the price of that television.[*2]
The defendant's nephew testified that on the secondoccasion, he and the defendant placed various items of merchandise in a shopping cart, wheeledthat cart to a store exit, and placed those items beneath a gap in a fence leading to the parkingarea. A store "loss prevention investigator" testified to having witnessed those events, andidentified the defendant at trial.
The County Court instructed the jury, inter alia, that the defendant was charged with havingcommitted one count of grand larceny in the fourth degree based on having, in concert withanother person, wrongfully taken, retained, or withheld from its owner items with a valueexceeding $1,000 over the course of the two incidents. The jury convicted the defendant of grandlarceny in the fourth degree.
The County Court properly denied that branch of the defendant's omnibus motion which wasto suppress identification testimony. Initially, contrary to the People's contention, the defendantsufficiently preserved his contentions for appellate review in this regard (see CPL 470.05[2]). However, the People established in the first instance that the photo array was not improper,and the defendant failed to establish that the procedure was unduly suggestive (see People vChipp, 75 NY2d 327, 335-336 [1990], cert denied 498 US 833 [1990]). In particular,although there was conflicting evidence as to whether the first witness may have been present inthe room when the second witness viewed the photo array, that evidence would not, by itself,taint the second witness's identification testimony, absent evidence of communication betweenthe two witnesses, which was not present here (see People v Rodriguez, 17 AD3d 1127, 1129 [2005]; People vRosario, 253 AD2d 706 [1998]; People v Williams, 240 AD2d 442 [1997]). TheCounty Court also did not err in determining that the photos of the fillers used in the arraysufficiently resembled the defendant's photo, and that the array was not unduly suggestive (see People v Howard, 50 AD3d823 [2008]; People vRagunauth, 24 AD3d 472 [2005]). Further, there is no merit to the defendant'scontention that the fact that each witness was shown only a single array of six photos, by itself,rendered the photo array procedure improper (see generally People v Gilbert, 295 AD2d275, 276-277 [2002]).
The defendant's challenge to the County Court's Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) lacks merit. The defendant's past crimes were relevant to theissue of credibility because they demonstrated the defendant's willingness to deliberately furtherhis self-interest at the expense of society (see People v Diaz, 50 AD3d 919 [2008]; People v Myron, 28 AD3d 681[2006], cert denied 549 US 1326 [2007]; People v Telesford, 2 AD3d 757, 758 [2003]; People vFulford, 280 AD2d 682 [2001]). Moreover, the prosecutor was not permitted to inquire aboutthe specific nature of the prior charges of which the defendant was convicted, nor the underlyingfacts of those prior crimes (see People v Myron, 28 AD3d at 683; People vTelesford, 2 AD3d at 758). Under these circumstances, the County Court struck anappropriate balance between the probative value of the defendant's prior crimes on the issue ofhis credibility and the possible prejudice to the defendant, and the defendant failed to sustain hisburden of "demonstrating that the prejudicial effect of the evidence of his prior convictions sooutweighed its probative worth that its exclusion was warranted" (People v Myron, 28AD3d at 683; see People v Mackey, 49 NY2d 274, 282 [1980]; People vBoseman, 161 AD2d 601, 602 [1990]).
The defendant received the effective assistance of counsel under both the state and federalstandards (see People v Williams, 8NY3d 854, 855-856 [2007]; Peoplev Taylor, 1 NY3d 174, 177 [2003]; People v Benevento, 91 NY2d 708, 713-714[1998]; People v Baldi, 54 NY2d 137, 147 [1981]; see also Strickland vWashington, 466 US 668 [1984]).
The defendant failed to preserve for appellate review his contentions that there was legallyinsufficient proof of his identity or that he completed the takings of the property as charged(see CPL 470.05 [2]; People vAnthony, 21 AD3d 903 [2005]). In any event, those contentions are without merit (see People v Chin, 69 AD3d 752[2010]; People v Gordon, 65 AD3d1261 [2009]; see also People vLaRock, 21 AD3d 1367 [2005]; People v Perez, 16 AD3d 191 [2005]; People v Harris, 7 AD3d 812[2004]). In addition, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the jury's findings as to the defendant's identity and as to his completion of the crimes werenot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
However, there was legally insufficient proof as to the value of the property taken. Thedefendant was charged with a single count of grand larceny in the fourth degree, based on hishaving [*3]allegedly taken property with a value of over $1,000in an "ongoing course of conduct and common plan and scheme" on the dates of the twoincidents. However, the evidence was not sufficient to prove that the television allegedly stolenin the first incident had a value of over $1,000 (see Penal Law § 155.30 [1]), asthere was insufficient proof as to the specific type of television that was taken (see People v Jackman, 8 AD3d678 [2004]; People v Smith, 289 AD2d 1056 [2001]). It is undisputed that the valueof the goods taken in the second incident was less than $1,000.
Further, there was insufficient proof that the two incidents, together, constituted a commonscheme or plan. Grand larceny "may be charged as a series of single larcenies governed by acommon fraudulent scheme or plan" under some circumstances (People v Arnold, 15 AD3d 783,785 [2005] [internal quotation marks omitted]), where property is stolen from the same ownerand place by a series of acts "pursuant to a single, sustained, criminal impulse" (People vPerlstein, 97 AD2d 482, 484 [1983] [internal quotation marks omitted]), comprised of a"unitary plan or design" (id. at 484). Here, however, the evidence was insufficient todemonstrate that the two takings of property constituted an ongoing fraudulent scheme or plan, asthere was no evidence of the defendant's intent to commit fraud or of his intent to engage in aplan of continuous fraud. Therefore, the two incidents could not be considered in the aggregatefor purposes of determining the value of the goods taken (cf. People v Arnold, 15 AD3dat 785; People v Rosich, 170 AD2d 703 [1991]). Consequently, there was insufficientproof of the value of the goods to establish the count of grand larceny in the fourth degree.
However, the evidence was legally sufficient to establish the lesser-included charge of petitlarceny (see Penal Law § 155.25). Accordingly, we reduce the defendant'sconviction of grand larceny in the fourth degree to petit larceny, and vacate the sentence imposedthereon. However, since the defendant has already served the maximum permissible sentence forthat crime, the matter is remitted to the County Court, Dutchess County, for sentencing to timeserved on the conviction for petit larceny (see People v Harvin, 75 AD3d 559, 561 [2010]).
In light of our determination, we need not reach the defendant's remaining contention.Mastro, J.P., Leventhal, Hall and Lott, JJ., concur.