| People v Morrison |
| 2013 NY Slip Op 07087 [110 AD3d 1380] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vWarren F. Morrison, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered February 24, 2012, convicting defendant following a nonjury trial of thecrime of grand larceny in the fourth degree.
After defendant was seen leaving a home improvement store with five items ofmerchandise for which he had not paid, he was arrested and charged with grand larcenyin the fourth degree. He waived a trial by jury and, following a bench trial at which hecontested only the value of the stolen items, he was convicted as charged. He nowappeals.
Although all five items were returned to the store and sold before defendant had anopportunity to inspect them, we agree with County Court that Penal Law § 450.10applies only to the stolen air conditioner as that was the only item that was in policecustody (see People vChance, 71 AD3d 563, 564 [2010], lv denied 15 NY3d 748 [2010];People v Faucette, 201 AD2d 252, 253 [1994]). While the police admittedlyfailed to give the statutory notice before returning that item to the store, the choice of anappropriate sanction is left to the sound discretion of the trial court (see People v Riley, 19 NY3d944, 946 [2012]; People vRuple, 74 AD3d 1487, 1489 [2010], lv denied 15 NY3d 895 [2010]; People v Perkins, 56 AD3d944, 945-946 [2008], lv [*2]denied 12 NY3d786 [2009]).
Here, County Court indicated that it would consider the statutory violation indetermining the weight of the evidence, but found that the value of the air conditionerwas adequately established by the store's loss prevention specialist. Despite theunavailability of the other four items that had been returned directly to the store by a thirdparty, defense counsel was able to cross-examine the store employees regarding theirvalue and the store's discounting policies. There was ample evidence, credited by CountyCourt, that the combined value of the five stolen items was over $1,000 and that none ofthe items was discounted at the time of the theft. Under these circumstances, we agreewith County Court that there was no undue prejudice to defendant and find no abuse ofdiscretion in its determination of the appropriate sanction (see People v Ruple, 74AD3d at 1489-1490; People v Perkins 56 AD3d at 945-946).
Defendant's remaining contentions do not require extended discussion. First, hisargument that his conviction must be reversed because his written waiver of a jury trialwas not signed in accordance with the procedure required by CPL 320.10 (2) isunpreserved for our review (see CPL 470.05 [2]; People v Johnson, 51NY2d 986, 987-988 [1980]). While defendant may have made a CPL 440.10 motion onthis ground, that motion is not in the record now before us and does not preserve theissue on this appeal (see Peoplev White, 104 AD3d 1056, 1056 [2013], lv denied 21 NY3d 1021[2013]). Nor do the circumstances of his waiver warrant our reversal in the interest ofjustice. Second, defendant's argument that reversal is required pursuant to CPL 210.35(5) is also unpreserved (seePeople v Gutierrez, 96 AD3d 1455, 1455 [2012], lv denied 19 NY3d997 [2012]). In any event, there was sufficient evidence, including defendant'sconfession, to sustain the indictment. Third, while there were two isolated instances ofimproper comments made during the grand jury proceedings, they were, under thecircumstances here, unlikely to influence the proceedings (see People v Farley, 107 AD3d1295, 1295-1296 [2013], lv denied 21 NY3d 1073 [2013]; People v Kidwell, 88 AD3d1060, 1061-1062 [2011]; People v Crandall, 306 AD2d 748, 749 [2003],lv denied 100 NY2d 619 [2003]).
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.