| People v Sutherland |
| 2013 NY Slip Op 00364 [102 AD3d 897] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jamie Sutherland, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L.Mandel of counsel; Deborah Wei on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Guzman, J.), rendered June 17, 2011, convicting him of grand larceny in the thirddegree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant'sconviction of grand larceny in the third degree to petit larceny, and vacating the sentenceimposed; as so modified, the judgment is affirmed, and the matter is remitted to theSupreme Court, Kings County, for further proceedings in accordance herewith.
The defendant was charged, inter alia, with grand larceny in the third degree, inviolation of Penal Law § 155.35 (1), based on allegations that he stole 12 cellulartelephones by removing them from the various display podiums to which they weretethered inside a T-Mobile store in Brooklyn. The defendant correctly contends that theevidence was not legally sufficient to support his conviction of grand larceny in the thirddegree.
"A person is guilty of grand larceny in the third degree when he or she steals propertyand . . . when the value of the property exceeds three thousand dollars"(Penal Law § 155.35 [1]). Value is defined as "the market value of the property atthe time and place of the crime, or if such cannot be satisfactorily ascertained, the cost ofreplacement of the property within a reasonable time after the crime" (Penal Law §155.20 [1]).
As a threshold matter, the People correctly concede that the market value of thedisplayed cell phones could not be satisfactorily ascertained (see People vVientos, 79 NY2d 771 [1991]; People v Bayusik, 192 AD2d 1073 [1993],affd 83 NY2d 774 [1994]). The store manager testified that phones placed ondisplay are not sold to customers, and are only removed from display when the model isdiscontinued, at which point they are returned to the manufacturer. Having establishedthat there was no market for current model cell phones that had been altered for securedisplay purposes, "[t]he People were not required to show whether the [phones] had anestablished value in the black market" (People v Vientos, 79 NY2d at 772).Accordingly, the People could establish value through the alternative method of cost ofreplacement (see Penal Law § 155.20 [1]).[*2]
Nevertheless, the defendant correctly contendsthat, notwithstanding the People's reliance on the cost-of-replacement method ofvaluation, the evidence was not legally sufficient to prove that the value of the phonesexceeded $3,000. Any person who testifies as to the value of an item "must provide abasis of knowledge for his [or her] statement of value before it can be accepted as legallysufficient evidence of such value" (People v Lopez, 79 NY2d 402, 404 [1992];see People v Smith, 289 AD2d 1056, 1058-1059 [2001]). "Conclusorystatements and rough estimates of value" that are unsupported by a basis of knowledgeare insufficient (People vLoomis, 56 AD3d 1046, 1047 [2008]; see People v Pallagi, 91 AD3d 1266, 1269 [2012];People v Gonzalez, 221 AD2d 203, 204 [1995]). Although the store managertestified generally regarding the range of estimated values that she would assign to thestolen phones, she failed to provide a basis of knowledge for her statement, and therewas no specific proof as to the cost of replacing any particular phone (see People vPallagi, 91 AD3d at 1269-1270; People v Seymour, 77 AD3d 976, 977-980 [2010]; cf.People v Wandell, 285 AD2d 736 [2001]; People v Mims, 178 AD2d 178[1991]). As there was no other evidence as to the value of the stolen property, the Peoplefailed to meet their burden of proving every element of the crime of grand larceny in thethird degree (see Penal Law § 155.35), or grand larceny in the fourthdegree (see Penal Law § 155.30).
However, the evidence presented did establish the crime of petit larceny, whichrequires no proof of value (see Penal Law § 155.25). Accordingly, wereduce the defendant's conviction of grand larceny in the third degree to petit larceny,and vacate the sentence imposed. Although the defendant has already served themaximum sentence that could be imposed for petit larceny (see Penal Law§ 70.15 [1]), we nevertheless remit the matter to the Supreme Court, KingsCounty, for the imposition of an authorized sentence for that offense (see People vSeymour, 77 AD3d at 980; People v Harvin, 75 AD3d 559, 561 [2010]). Mastro, J.P.,Lott, Austin and Sgroi, JJ., concur.