| People v Ju Ju Jiang |
| 2012 NY Slip Op 06619 [99 AD3d 724] |
| October 3, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Ju JuJiang, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.),rendered July 15, 2009, convicting him of grand larceny in the third degree, identity theft in thefirst degree (four counts), attempted grand larceny in the third degree, scheme to defraud in thefirst degree, and unlawful possession of personal identification information in the third degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the defendant's conviction of attempted grand larceny in the third degree to attemptedgrand larceny in the fourth degree, and vacating the sentence imposed thereon; as so modified,the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, forthe imposition of a sentence to time served on the conviction of attempted grand larceny in thefourth degree.
The defendant's contention that the evidence presented as to the sixth count of theindictment, charging him with attempted grand larceny in the third degree, was legallyinsufficient to prove that the value of the stolen property exceeded $3,000, was not preserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). However, we reachthe issue in the exercise of our interest of justice jurisdiction (see People v Oates, 33 AD3d 823, 823 [2006]; People v Jackman, 8 AD3d 678,678-679 [2004]).
As the People correctly concede, the evidence was legally insufficient to establish that thestolen property had a value in excess of $3,000, as required to support a conviction of attemptedgrand larceny in the third degree (see Penal Law §§ 110.00, 155.35 [1]).Nonetheless, the evidence was legally sufficient to support a conviction of the lesser-includedoffense of attempted grand larceny in the fourth degree (see Penal Law §§110.00, 155.30 [1]). Accordingly, we reduce the defendant's conviction of attempted grandlarceny in the third degree to attempted grand larceny in the fourth degree, and vacate thesentence imposed thereon (see CPL 470.15 [2] [a]; People v Jackman, 8 AD3d at679). Since the defendant has already served the maximum permissible sentence for that crime(see Penal Law § 70.15 [1]), the matter must be remitted to the Supreme Court,Queens County, for the imposition of a sentence to time served on the conviction of attemptedgrand larceny in the fourth degree (seePeople v Seymour, 77 AD3d 976, 980 [2010]; People v Harvin, 75 [*2]AD3d 559, 561 [2010]).
The defendant contends that the Supreme Court erred in denying his challenge for cause to aprospective juror who expressed doubt as to her ability to remain impartial if the defendant chosenot to testify at trial. However, upon further inquiry, the prospective juror gave unequivocalassurances that she would follow the court's instructions regarding the presumption of innocence,and that she would not draw any negative inferences from the defendant's failure to testify.Accordingly, the Supreme Court properly denied the defendant's challenge for cause to thisprospective juror (see People vHigh, 18 AD3d 775, 776 [2005]; People v Porter, 7 AD3d 817 [2004]; People v Narvaez,298 AD2d 603, 603 [2002]; cf. People v Bludson, 97 NY2d 644, 645 [2001]; People v Kenner, 8 AD3d 296,297 [2004]).
The defendant's remaining contention is without merit. Dillon, J.P., Dickerson, Austin andMiller, JJ., concur.