| People v Monclova |
| 2011 NY Slip Op 07693 [89 AD3d 424] |
| November 1, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseMonclova, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J., at hearing; GregoryCarro, J., at jury trial and sentencing), rendered November 4, 2009, convicting defendant ofgrand larceny in the third degree, grand larceny in the fourth degree (two counts) and criminalpossession of stolen property in the third degree, and sentencing him, as a second felonyoffender, to an aggregate term of 7½ to 15 years, unanimously modified, on the law, to theextent of reducing the conviction of grand larceny in the fourth degree on count seven to petitlarceny, and reducing the sentence on that conviction to time served, and otherwise affirmed.
The court properly denied defendant's suppression motion. The hearing court properly foundthat defendant's fiancÉe's consent to the police search of her apartment was voluntary(see generally People v Gonzalez, 39 NY2d 122 [1976]). Defendant's other suppressionclaim is both unpreserved and unreviewable for lack of a proper factual record (see e.g.People v Martin, 50 NY2d 1029, 1031 [1980]).
The proof was insufficient for the conviction for fourth degree grand larceny under theseventh count of the indictment, with regard to the requirement that the value of the stolen laptopcomputer at the time of the theft exceeded one thousand dollars (see Penal Law §155.20 [1]; § 155.30 [1]). The People merely presented evidence that the original price ofthe computer in December 2004 was a little over $2,000, and that the computer was stillfunctioning and in good condition at the time of the theft in December 2007. While "[p]roof oforiginal cost may provide sufficient evidence of value where the difference between the cost ofthe item and the statutory threshold is substantial and where there is little risk that the item hasdepreciated in value below the statutory threshold" (see People v Stein, 172 AD2d 1060,1060 [1991], lv denied 78 NY2d 975 [1991]), a jury must be able to "reasonably infer,rather than merely speculate, that the property . . . has the requisite value to satisfythe statutory threshold" (People v Lopez, 79 NY2d 402, 405 [1992]). Based upon theevidence, the jury could only speculate whether the computer still had a value of more than$1000 in December 2007.
However, the evidence was sufficient as to the television that was the subject of count six. Ithad been purchased only nine months before the theft for approximately $1,500, and after it wasstolen, the owner bought a replacement for about $1,300; furthermore, when the stolen [*2]television was returned to him, the owner preferred it to the newlypurchased $1,300 substitute. This evidence constituted a sufficient basis for the jury to infer,rather than merely speculate, that the television's value at the time of the theft still exceeded$1,000.
We perceive no basis for reducing defendant's sentences for his convictions of grand larcenyin the third degree and criminal possession of stolen property in the third degree.Concur—Tom, J.P., Saxe, DeGrasse, Freedman and RomÁn, JJ.