People v Raszl

2013 NY Slip Op 05117 [108 AD3d 1049]

July 5, 2013

Appellate Division, Fourth Department

As corrected through Wednesday, August 21, 2013

The People of the State of New York, Respondent, vAndrea Raszl, Appellant.

—[*1]Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.

Gregory S. Oakes, District Attorney, Oswego (Mark Moody of counsel), forrespondent.

Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered January 30, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of stolen property in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence of incarcerationimposed to a definite sentence of seven months incarceration and as modified thejudgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon a juryverdict of criminal possession of stolen property in the third degree (Penal Law §165.50), and sentencing her to an indeterminate term of incarceration of21/3 to 7 years. As the People correctly concede, the sentence imposed isunduly harsh and severe, but we reject defendant's contention that probation would nowbe an illegal disposition (seegenerally People v Becker, 71 AD3d 1372, 1372 [2010]). As a matter ofdiscretion in the interest of justice, however, we modify the judgment of conviction byreducing the sentence imposed to a definite sentence of seven months incarceration(see CPL 470.15 [6] [b]; Penal Law § 70.00 [4]).

Contrary to defendant's further contention, the conviction of criminal possession ofstolen property in the third degree is supported by legally sufficient evidence that thevalue of the stolen property exceeded $3,000 (see generally Penal Law §165.50; People v Bleakley, 69 NY2d 490, 495 [1987]). The value of stolenproperty is "the market value of the property at the time and place of the crime, or if suchcannot be satisfactorily ascertained, the cost of replacement of the property within areasonable time after the crime" (Penal Law § 155.20 [1]). We conclude that therecord establishes that "the jury ha[d] a reasonable basis for inferring, rather thanspeculating, that the value of the [stolen] property exceeded the statutory threshold" of$3,000 (People v Pallagi,91 AD3d 1266, 1270 [2012] [internal quotation marks omitted]). Finally, defendantcontends that defense counsel was ineffective because he failed to challenge theadequacy of the CPL 710.30 notice. We reject that contention. "It is well settled that'[t]here can be no denial of effective assistance of trial counsel arising from counsel'sfailure to "make a motion or argument that has little or no chance of success" ' " (People v Johnson, 81 AD3d1428, 1428-1429 [2011], lv denied 16 NY3d 896 [2011], quoting People v Caban, 5 NY3d143, 152 [2005]). Here, the People filed a notice pursuant to CPL [*2]710.30 indicating that a statement of defendant that wasintended to be used at trial was attached to the notice, and there is no dispute that thewritten statement was attached thereto. Defendant was therefore furnished with noticethat adequately set out the time and place and the sum and substance of her statement,and permitted her to intelligently identify it (see generally People v Lopez, 84NY2d 425, 428 [1994]; Peoplev Sumter, 68 AD3d 1701, 1701 [2009], lv denied 14 NY3d 893 [2010]).Thus, defense counsel's failure to move to preclude the statement on the ground ofinsufficient notice does not constitute ineffective assistance because such a motion wouldhave had little or no chance of success (see Caban, 5 NY3d at 152).Present—Smith, J.P., Fahey, Carni, Valentino and Whalen, JJ.