| People v Brink |
| 2010 NY Slip Op 08150 [78 AD3d 1483] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronald Brink,Appellant. |
[Recalled and vacated, see 124 AD3d 1419.]
—[*1]
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered December 9,2008. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree andgrand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byreducing the conviction of grand larceny in the fourth degree (Penal Law § 155.30 [1]) to petitlarceny (§ 155.25) and vacating the sentence imposed on count two of the indictment and asmodified the judgment is affirmed, and the matter is remitted to Ontario County Court for sentencing onthe conviction of petit larceny.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary in thesecond degree (Penal Law § 140.25 [2]) and grand larceny in the fourth degree (§155.30 [1]), defendant contends the evidence is legally insufficient to support the conviction of grandlarceny in the fourth degree because the People failed to establish that the value of the stolen propertyexceeded $1,000. We agree. At trial, the People presented evidence that the value of a camcorderstolen in the burglary was $600. The only remaining evidence presented with respect to the value of theother property stolen was that a used video game console had been purchased for $100 by thehomeowner's son a few months before the burglary, and a new video game had been purchased forapproximately $250 five to six months before the burglary, but it had several broken parts at the time ofthe burglary. Even assuming, arguendo, that such evidence was sufficient to establish that those pricesaccurately reflected the value of the property at the time of the burglary (cf. People v Alexander, 41 AD3d1200, 1201 [2007], lv denied 9 NY3d 920 [2007]), we conclude that the total value ofthe stolen property would be $950. Inasmuch as there was no evidence presented concerning the valueof any other item taken, any value attributed to the remaining property would be based on merespeculation (cf. People v Pepson, 61AD3d 1399, 1400 [2009], lv denied 12 NY3d 919 [2009]). Consequently, we cannot onthis record conclude "that the jury ha[d] a reasonable basis for inferring, rather than speculating, that thevalue of the property exceeded the statutory threshold" of $1,000 (People v Sheehy, 274AD2d 844, 845 [2000], lv denied 95 NY2d 938 [2000]). We therefore modify the judgmentby reducing the conviction of grand larceny in the fourth degree to petit larceny (Penal Law §155.25) and vacating the sentence imposed on [*2]count two of theindictment (see CPL 470.15 [2] [a]), and we remit the matter to County Court for sentencingon the conviction of petit larceny (see CPL 470.20 [4]).
We reject the further contention of defendant that the verdict, as modified, is against the weight ofthe evidence. Viewing the evidence in light of the elements of the crime of burglary in the second degreeas charged to the jury, as well as the elements of petit larceny (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that anacquittal would not have been unreasonable based on the questionable credibility of the accompliceswho testified at trial (see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Alexis, 65 AD3d 1160[2009]; People v Griffin, 63 AD3d635, 638 [2009], lv denied 13 NY3d 835 [2009]). Nevertheless, "giving 'appropriatedeference to the jury's superior opportunity to assess the witnesses' credibility' " (People v Marshall, 65 AD3d 710, 712[2009], lv denied 13 NY3d 940 [2010]), we conclude that the jury was entitled to credit theirtestimony concerning the events rather than defendant's version.
We reject defendant's further contention that the testimony of the accomplices was not sufficientlycorroborated. We note at the outset that, as the court properly concluded, the issue whetherdefendant's former girlfriend was an accomplice was for the jury to determine (see People vBasch, 36 NY2d 154, 157 [1975];People v McPherson, 70 AD3d 1353, 1354 [2010], lv denied 14 NY3d 890[2010]; People v Adams, 307 AD2d 475 [2003], lv denied 1 NY3d 566 [2003]).Even assuming, arguendo, that the jury determined that the former girlfriend was an accomplice, wereject the further contention of defendant that her testimony, and that of the other two accomplices, wasnot sufficiently corroborated. " 'The corroborative evidence need not show the commission of thecrime; it need not show that defendant was connected with the commission of the crime. It is enough ifit tends to connect the defendant with the commission of the crime in such a way as may reasonablysatisfy the jury that the accomplice is telling the truth' " (People v Reome, 15 NY3d 188, 191-192 [2010], quoting People vDixon, 231 NY 111, 116 [1921]). Here, the testimony of the accomplices was sufficientlycorroborated by other evidence, including the testimony of a police officer establishing that defendantwas in a vehicle with the accomplices and the stolen property a short time after the burglary, evidenceestablishing that defendant attempted to persuade his former girlfriend to change her testimony so thatshe would not implicate him in the burglary, and the testimony of defendant, in which he admitted thathe accompanied the accomplices to the scene of the burglary (see People v Potter, 270 AD2d892 [2000], lv denied 95 NY2d 838 [2000]; People v Cousins, 221 AD2d 923,924-925 [1995], lv denied 87 NY2d 1018, 88 NY2d 965 [1996]).
Defendant failed to preserve for our review his contention that the court penalized him forexercising his right to a trial by imposing a longer term of incarceration than that proposed during pleanegotiations (see People v Dorn, 71AD3d 1523 [2010]; People vGriffin, 48 AD3d 1233, 1236-1237 [2008], lv denied 10 NY3d 840 [2008]). In anyevent, that contention is without merit. " '[T]he mere fact that a sentence imposed after trial is greaterthan that offered in connection with plea negotiations is not proof that defendant was punished forasserting his right to trial' " (People vChappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]), and there isno indication in the record before us that the sentencing court acted in a vindictive manner based ondefendant's exercise of the right to a trial (see generally People v Pena, 50 NY2d 400,411-412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087[1981]). Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Carni,Lindley, Sconiers and Pine, JJ.