| People v Card |
| 2014 NY Slip Op 01478 [115 AD3d 1007] |
| March 6, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Amanda M. Card, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John M. Tuppen of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered September 30, 2011, upon a verdict convicting defendant of the crime ofgrand larceny in the third degree.
Defendant was employed as a housekeeper at an assisted living facility where shewas accused of stealing jewelry from an elderly resident. She was convicted of grandlarceny in the third degree and sentenced to a prison term of 2
The weight of the evidence supports the verdict. Although the victim died prior totrial, her son identified photographs of the jewelry that he had placed in a lockbox for hismother and testified that, while she was in the hospital, he discovered the lockboxmissing from its usual place in his mother's dresser in her apartment at the facility.Defendant had access to the victim's apartment, and a friend who helped defendant sellthe jewelry testified that defendant described finding the jewelry in a small safe in adresser belonging to a resident of the facility. Two other friends of defendant testified,one regarding defendant's admissions that she stole jewelry from an elderly woman at thefacility and another describing defendant's suspicious conduct while trying to sell thejewelry. The credibility of these prosecution witnesses was fully explored at trial. Ajeweler also identified a photograph of a watch stolen from the victim as one he hadpurchased from defendant.[*2]
As part of our review of the weight of theevidence, we conclude that the People's expert jewelry appraiser provided testimony thatpermitted the jury to reasonably infer that the value of the stolen jewelry was more than$3,000 (see Penal Law § 155.35; People v Royster, 107 AD3d 1298, 1300-1301 [2013],lv denied 22 NY3d 958 [2013]; People v Szyzskowski, 89 AD3d 1501, 1502 [2011]; People v Hardy, 57 AD3d1100, 1102 [2008], lv denied 12 NY3d 784 [2009]). The expert was familiarwith the jewelry, inasmuch as she had earlier appraised it for insurance purposes and hadsold some of the pieces to the victim. Based on photographs of the jewelry, her priorappraisals and her experience, the expert was able to assign a fair market value of over$11,000 to the stolen pieces at the time of their theft. The expert also opined that, basedon her personal knowledge, the victim took good care of the jewelry, and wear and tearwas to be expected, but that would not significantly affect its value.
Based on the foregoing, we cannot agree that defense counsel's failure to make aspecific motion for a trial order of dismissal on the ground that the evidence of the valueof the stolen jewelry was insufficient rises to the level of ineffective assistance, inasmuchas such a motion had " 'little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]). Nor didcounsel's failure to call an opposing expert appraiser amount to ineffective assistancewhere, as here, counsel vigorously cross-examined the People's expert in an attempt toundercut her testimony regarding the value of the jewelry (see People v Auleta, 82 AD3d1417, 1419-1420 [2011], lv denied 17 NY3d 813 [2011]; People v Demetsenare, 14AD3d 792, 794 [2005]). In any event, defendant has not demonstrated that there wasan available expert appraiser with similar qualifications who would have providedbeneficial testimony to the defense (see People v Demetsenare, 14 AD3d at 794;People v Prince, 5 AD3d1098, 1098 [2004], lv denied 2 NY3d 804 [2004]).
Finally, we are unpersuaded by defendant's claim that the sentence was harsh andexcessive. Given defendant's extensive criminal history, her lack of remorse and herviolation of trust by victimizing a vulnerable elderly person, we find no abuse ofdiscretion or extraordinary circumstances warranting a reduction of the sentence (see People v Alnutt, 101 AD3d1461, 1466 [2012], lv denied 21 NY3d 941 [2013], cert denied 571US —, 134 S Ct 1035 [2014]; People v Arquette, 281 AD2d 652, 652[2001]; People v Shea, 254 AD2d 512, 513 [1998]).
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.