| People v Pallagi |
| 2012 NY Slip Op 00541 [91 AD3d 1266] |
| Jnury 31, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Sashalee N. Pallagi, Appellant. (Appeal No.1.) |
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedMarch 2, 2011. The judgment convicted defendant, upon a jury verdict, of grand larceny in thefourth degree. It is hereby ordered that the judgment so appealed from is reversed on the law and theindictment is dismissed without prejudice to the People to file any appropriate charge. Memorandum: In these two appeals, defendants appeal, respectively, from judgmentsconvicting them following a single jury trial of grand larceny in the fourth degree (Penal Law 155.30 [1]). The convictions arose from an incident in which defendants, according to thetestimony of a store loss prevention officer presented by the People, stole numerous items ofproperty by removing the store security sensors and hangers from the items, and then removingthe items from the store by unknown means. Certain merchandise was apparently neverrecovered. Defendants were apprehended as they left the store, but no merchandise wasrecovered. The People served CPL 710.30 notices of their intent to offer statements that defendantsmade to law enforcement officers at the time of their arrest, although the notices indicated thatdefendants made only exculpatory statements. During the trial, however, a sheriff's deputytestified that he asked defendant Sashalee N. Pallagi how defendants arrived at the mall, and shereplied that a friend had given them a ride. Defendants objected, and replied in the affirmativewhen County Court asked if they were moving to strike the testimony. The court denied themotion, however, and the prosecutor thereafter cross-examined Sashalee on that point. Inaddition, the prosecutor argued during summation that the friend was part of the scheme to stealproperty. We agree with defendants that the court erred in denying their motion to strike. Initially,we note that the People failed to preserve for our review their present contention that defendants'objection was untimely (see generally People v Hunter, 17 NY3d 725, 727-728 [2011]; People vWhitley, 68 AD3d 790, 791 [2009], lv denied 14 NY3d 807 [2010]; People v Garcia, 296 AD2d509, 510 [2002]). "Whenever the people intend to offer at a trial . . . evidence of a statement made by adefendant to a public servant, which statement if involuntarily made would render the evidencethereof suppressible upon motion pursuant to subdivision three of section 710.20, . . . they mustserve upon the defendant a notice of such intention, specifying the evidence intended to beoffered" (CPL 710.30 [1]). The People need not provide all statements verbatim, "but they mustbe described sufficiently so that the defendant can intelligently identify them" (People v Lopez,84 NY2d 425, 428 [1994]). We conclude that the notice at issue is insufficient because it failedto provide defendants "with notice that adequately set out the sum and substance of [the]statements [presented by the People at trial] and permitted [defendants] to intelligently identifythem" (People v Sturdevant, 74 AD3d 1491, 1492 [2010], lv denied 15 NY3d 810 [2010]; cf.People v Chanowitz, 298 AD2d 767, 768-769 [2002], lv denied 99 NY2d 613 [2003]). Contraryto the People's further contention, the statements were not pedigree information exempt from thenotice requirement (cf. People v Rodney, 85 NY2d 289, 293 [1995]). We therefore reverse thejudgments. If this were the only meritorious argument presented by defendants, we would grant anew trial on the grand larceny charge of which they were convicted. We also conclude for thereasons that follow, however, that defendants are correct that the evidence is legally insufficientto support the conviction of grand larceny and thus that a new trial on that charge is notwarranted. We therefore reverse the judgment in each appeal and dismiss the indictments, eachof which charged the respective defendant solely with grand larceny in the fourth degree.Nevertheless, because we further conclude that the evidence is legally sufficient to support aconviction of petit larceny, we dismiss the indictments without prejudice to the People to file anyappropriate lesser charge (see generally People v Holmes, 302 AD2d 936 [2003]). As noted, defendants further contend that the evidence is legally insufficient to supportthe conviction. Specifically, they contend that it is legally insufficient to establish that they stoleproperty, that they took property from an owner thereof, and that the value of the stolen propertyexceeded $1,000. We note at the outset that defendants failed to preserve for our review theircontention that the evidence is legally insufficient to establish that they took property "from anowner thereof" (Penal Law 155.05 [1]; see People v Gray, 86 NY2d 10, 19-20 [1995]). In anyevent, viewing the evidence in the light most favorable to the People (see People v Contes, 60NY2d 620, 621 [1983]), we conclude that there is legally sufficient evidence establishing that thestore's loss prevention officer "had a possessory right which, however limited or contingent, wassuperior to that of defendant[s]" (People v Hutchinson, 56 NY2d 868, 869 [1982]). Contrary to defendants' further contention, there is legally sufficient evidence establishingthat they stole property. The essential element of taking with respect to a larceny "is satisfiedwhere the defendant 'exercised dominion and control over the property for a period of time,however temporary, in a manner wholly inconsistent with the owner's continued rights' " (Peoplev Zombo, 28 AD3d 1233, 1234 [2006], lv denied 7 NY3d 797 [2006], quoting People vJennings, 69 NY2d 103, 118 [1986]). Here, the People presented evidence establishing thatdefendants removed hangers and store security sensors from an unknown number of items andthen concealed the items, and that certain items were removed from the store. Thus, the evidenceis legally sufficient to establish that defendants "exercised control wholly inconsistent with theowner's continued rights" (People v Olivo, 52 NY2d 309, 319 [1981]). We agree with defendants, however, that the conviction is not supported by legallysufficient evidence that the value of the stolen property exceeded $1,000. The value of stolenproperty is "the market value of the property at the time and place of the crime, or if such cannotbe satisfactorily ascertained, the cost of replacement of the property within a reasonable timeafter the crime" (Penal Law 155.20 [1]). The People therefore were required to establish beyonda reasonable doubt that the value of the stolen property exceeded $1,000. "The Court of Appealshas unequivocally held that 'a victim must provide a basis of knowledge for his [or her] statementof value before it can be accepted as legally sufficient evidence of such value' " (People vGonzalez, 221 AD2d 203, 204 [1995], quoting People v Lopez, 79 NY2d 402, 404 [1992])."Conclusory statements and rough estimates of value are not sufficient" (People v Loomis, 56AD3d 1046, 1047 [2008]; see People v Selassie, 166 AD2d 358, 359 [1990], lv denied 77 NY2d911 [1991]). Here, the sole evidence of value consisted of the testimony of a store loss preventionofficer, who indicated that three specific missing items were valued at $49.99, $128, and $108,respectively, and that the total value of the property taken was $2,200. In reaching the lattervalue, however, the store loss prevention officer inferred that certain property was taken based ona review of a grainy stop-action video recording of defendants' movement in the store, and sheadmitted that she could not clearly ascertain the items that were taken. She also testified thatdefendants took approximately 20 items of merchandise into the dressing room area, and that themerchandise was not recovered. She admitted, however, that approximately 20 items were foundin the dressing room area, and the People failed to establish that those items were not some ofthose allegedly taken by defendants. Furthermore, the store loss prevention officer assigned aminimum value to the items that she concluded were taken, based merely upon her estimate ofthe minimum sale price of some of the items in that area of the store. No further evidence wasintroduced with respect to the value of any item, or with respect to the basis for her estimatedminimum sale price. "Consequently, we cannot on this record conclude 'that the jury ha[d] areasonable basis for inferring, rather than speculating, that the value of the property exceeded thestatutory threshold' of $1,000" (People v Brink, 78 AD3d 1483, 1484 [2010], lv denied 16 NY3d742 [2011], rearg denied 16 NY3d 828 [2011]). We therefore conclude that the evidence islegally insufficient to establish that the value of the property taken exceeded $1,000. Theevidence is legally sufficient, however, to establish that defendants committed the lesser includedoffense of petit larceny. Moreover, viewing the evidence in light of the elements of the crime ofpetit larceny (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that a verdictconvicting defendants of that crime would not be against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Absent the CPL 710.30 violation, wewould modify the judgments by reducing the convictions to that crime (see e.g. Brink, 78 AD3dat 1484). Inasmuch as the proper remedy for the CPL 710.30 violation is a new trial, however, wedismiss the indictments without prejudice to the People to file any appropriate charge. In light of our determination, we do not address defendants' contentions with respect tothe sentences imposed. All concur except Scudder, P.J., who dissents and votes to modify in accordance with thefollowing memorandum. Scudder, P.J. (dissenting). I respectfully dissent and would modify the respectivejudgments in each appeal by reducing the convictions of grand larceny in the fourth degree(Penal Law 155.30 [1]) to petit larceny ( 155.25; see CPL 470.15 [2] [a]), and I would remit thematters to County Court for resentencing (see CPL 470.20 [4]). I disagree with the majority that the court erred in refusing to strike the testimony thatSashalee N. Pallagi, the defendant in appeal No. 1, stated that a friend drove the two defendantsto the mall. Rather, in my view, the CPL 710.30 notices adequately set out the sum and substanceof defendants' statements and permitted them to identify those statements, which were essentiallydenials that they removed sensors from clothing or knew anything about the missing property(see People v Sturdevant, 74 AD3d 1491, 1492 [2010], lv denied 15 NY3d 810 [2010]).Although the notice does not contain the statement that defendants now contend was inculpatory,"[t]he statutory notice does not require a verbatim recitation of an oral statement" (People vCooper, 158 AD2d 743, 744 [1990], revd on other grounds 78 NY2d 476 [1991]). Furthermore,the "purpose of the notice requirement is to enable defendant[s] to challenge the voluntariness of[their] statements before trial . . . , [and thus] defendant[s] waived [their] objection to theadequacy of the notice by making [their respective] suppression motion[s]" (Sturdevant, 74AD3d at 1492). The fact that defendants ultimately withdrew their request for a Huntley hearingis of no moment. The CPL 710.30 notice served its purpose, i.e., it provided defendants with theopportunity to challenge the voluntariness of their respective statements. Even assuming,arguendo, that the statement in question is inculpatory, I conclude that it is not thereby renderedinvoluntary. Indeed, in my view, there is no basis for concluding that the court would havesuppressed the statement as involuntary even in the event that the Huntley hearing had beenconducted. Thus, I conclude that the court did not commit reversible error by refusing to strikethe testimony on the ground that defendants did not have notice of the statement. I agree with the majority that the evidence is legally insufficient to support the convictionof grand larceny in the fourth degree in each appeal. Thus, as noted, I would therefore modify thejudgments by reducing the convictions to petit larceny (see CPL 470.15 [2] [a]), and I wouldremit the matters to County Court for resentencing (see CPL 470.20 [4]). I submit, however, that the majority may not determine that the evidence supports a lesserincluded offense but then fail to modify the judgments by reducing the convictions to that lesserincluded offense (see CPL 470.15 [2] [a]). The rationale set forth by the majority for failing to doso is that the majority has determined that there is a trial error. As I previously set forth, I do notagree with the majority that there was a trial error. Nevertheless, for the reasons that follow, Isubmit that, if there also had been a trial error, the appropriate remedy would be to grant a newtrial on the indicted charges. Indeed, in the event that a defendant raises meritorious contentionsof both legal insufficiency and trial error, the corrective actions that a court is permitted bystatute to implement may conflict, as is the case with the majority's analysis. Specifically, themajority has determined both that the evidence is legally sufficient to support the lesser includedoffense of petit larceny, which requires modification of the judgments to convictions of petitlarceny and remittal for resentencing on those convictions (see CPL 470.15 [2] [a]; 470.20 [4]),while at the same time there is a trial error, which requires reversal of the judgments and remittalfor a new trial (see CPL 470.20 [1]). The conundrum faced by the majority, however, is that wemay not both modify a judgment by reducing the conviction to a lesser included offense (see CPL470.20 [2] [a]), and simultaneously grant defendant a new trial (see CPL 470.20 [1]). Based uponthe Court of Appeals' implicit holding in People v Wright (17 NY3d 643 [2011], revg 63 AD3d1700 [2009]), I submit that, if there is a trial error that deprived defendant of a fair trial, the errordeprives this Court of the authority to review a further contention that the conviction is not basedupon legally sufficient evidence and to reduce the conviction to a lesser included offense.Instead, the judgment must be reversed and a new trial granted on the indictment, without regardto the legal sufficiency of the evidence. In Wright, the Court of Appeals reversed our order in which we had, inter alia, modified ajudgment convicting defendant of murder in the second degree (Penal Law 125.25 [2] [depravedindifference murder]) by reducing the conviction to the lesser included offense of manslaughterin the second degree ( 125.15 [1]). On appeal from our order, the Court of Appeals determinedthat the trial court had erred in prohibiting defendant from introducing certain testimony, and theCourt of Appeals remitted the matter to Supreme Court "for a new trial" (17 NY3d at 656).Inasmuch as the accusatory instrument charged defendant with murder, and not manslaughter, itis implicit in the decision of the Court of Appeals that the new trial was to be held on the indictedcount of murder in the second degree. Had the Court intended that the trial be held on thereduced conviction of manslaughter, it necessarily would have granted the People leave tore-present the charges to another grand jury in order to obtain an accusatory instrument uponwhich to try defendant (see People v Gonzalez, 61 NY2d 633 [1983]). Thus, I further submit thatit is also implicit in the Court's decision that the trial error deprived this Court of the authority toreview the legal sufficiency of the evidence, inasmuch as this Court's conviction of the lesserincluded offense was overturned. In my view, where there is a trial error that denies defendant afair trial, the corrective action that may properly be taken is to reverse the judgment and grant anew trial (see CPL 470.20 [1]). Here, because the majority has determined that there is a trialerror, the judgments must be reversed and a new trial must be granted on the indicted counts ofgrand larceny (see Wright, 17 NY3d at 655-656). Finally, in my view, the majority's resolution of this matter violates the double jeopardyrights of defendants (see US Const 5th Amend; NY Const, art I, 6; CPL 40.20). Although doublejeopardy would not be implicated if there were an offense with which to charge defendants thatwas not a lesser included offense (see e.g. Matter of Suarez v Byrne, 10 NY3d 523, 538 [2008],rearg denied 11 NY3d 753 [2008]; People v Gilmore, 41 AD3d 1162 [2007], lv denied 9 NY3d875 [2007]), upon this record, the only charge available to the People is petit larceny. That is, ofcourse, a lesser included offense of grand larceny because " 'the lesser offense . . . requires noproof beyond that which is required for conviction of the greater' " (People v Biggs, 1 NY3d 225,230 [2003]), and thus the People would be precluded from charging defendants again withrespect to the theft of property for which they have previously been tried. Present Scudder, P.J.,Smith, Centra and Gorski, JJ.