| People v Curry |
| 2012 NY Slip Op 08326 [101 AD3d 743] |
| December 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HenryCurry, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Emil Bricker,and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered December 15, 2009, convicting him of burglary in the third degree, criminalmischief in the third degree, criminal possession of stolen property in the fifth degree (twocounts), and trespass, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of the defendant's omnibus motion to suppress identificationtestimony and physical evidence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, the defendant's omnibus motion to suppress identification testimony and physicalevidence is granted, the count in the indictment charging the defendant with criminal mischief inthe third degree is dismissed, and the matter is remitted to the Supreme Court, Queens County,for further proceedings on the counts of the indictment charging the defendant with burglary inthe third degree, criminal possession of stolen property in the fifth degree (two counts), andtrespass.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally insufficient to establish thedefendant's guilt of criminal mischief in the third degree beyond a reasonable doubt (seePeople v Powell, 101 AD3d 756 [2012] [decided herewith]). The evidence was insufficientto establish, beyond a reasonable doubt, that the damage to the subject property exceeded thesum of $250 (see Penal Law § 145.05 [2]; People v Quigley, 70 AD3d 1411, 1412 [2010]; People vJeffries, 151 AD2d 964 [1989]). Although this issue is unpreserved for appellate review(see CPL 470.05 [2]), we reach it in the exercise of our interest of justice jurisdiction(see CPL 470.15 [3] [c]; [6]).
Contrary to the People's contention, the defendant's contention that the hearing courtimproperly relied upon the fellow-officer rule to conclude that his arrest was supported byprobable cause is preserved for appellate review (see CPL 470.05 [2]; People v Feingold, 7 NY3d 288,290 [2006]; People v Prado, 4NY3d 725, 726 [2004]; People v Powell, 101 AD3d 756 [2012] [decided herewith];People v Berry, 49 AD3d 888,889 [2008]). Moreover, upon a review of the hearing record, we conclude that the defendant'somnibus motion to suppress identification testimony and physical evidence should have beengranted (see People v Powell, 101 AD3d 756 [2012] [decided herewith]). [*2]Accordingly, the defendant's convictions of burglary in the thirddegree, criminal possession of stolen property in the fifth degree (two counts), and trespass mustbe reversed (see People v Sanchez, 276 AD2d 723 [2000]).
Additionally, a new trial is required, in light of the Supreme Court's failure to comply withCPL 310.30. Contrary to the People's contention, the Supreme Court failed to fulfill its coreresponsibilities under CPL 310.30, thereby committing a mode of proceedings error that isexempt from preservation requirements and requires reversal (see People v Tabb, 13 NY3d 852, 853 [2009]; People v Powell,101 AD3d 756 [2012] [decided herewith]; People v Surpris, 83 AD3d 742, 744 [2011]; People v Piccione, 78 AD3d 1518,1519 [2010]; People v Lewis, 77AD3d 579, 580 [2010]).
Accordingly, we remit the matter to the Supreme Court, Queens County, for furtherproceedings on the counts of the indictment charging the defendant with burglary in the thirddegree, criminal possession of stolen property in the fifth degree (two counts), and trespass.Since the defendant was acquitted of the count of the indictment charging him with criminalmischief in the second degree, double jeopardy precludes a retrial on that count of the indictment(see People v Gonzalez, 61 NY2d 633, 635 [1983]). Furthermore, since double jeopardyprecludes a second trial with respect to a criminal charge resulting in a judgment of convictionthat is reversed on appeal for legal insufficiency (see Matter of Suarez v Byrne, 10 NY3d 523, 538-539 [2008]; People v Biggs, 1 NY3d 225, 229[2003]), the defendant may not be retried on the count of the indictment charging him withcriminal mischief in the third degree.
In light of our determination, we need not reach the defendant's remaining contentions.Rivera, J.P., Hall, Lott and Cohen, JJ., concur.