| People v Walker |
| 2014 NY Slip Op 05254 [119 AD3d 1402] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vJerel Walker, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered January 11, 2011. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree, grand larceny in the fourth degree (two counts), petitlarceny and criminal possession of stolen property in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as amatter of discretion in the interest of justice and on the law, the fourth count of theindictment is dismissed without prejudice to the People to file or re-present to anothergrand jury any appropriate charge under that count, the sixth count of the indictment isdismissed, and a new trial is granted on the third, ninth and 10th counts of theindictment.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of one count each of burglary in the second degree (Penal Law§ 140.25 [2]), petit larceny (§ 155.25) and criminal possessionof stolen property in the fifth degree (§ 165.40) and two counts of grandlarceny in the fourth degree (§ 155.30 [1], [4]). We agree with defendantthat the evidence is legally insufficient to support his conviction of grand larceny in thefourth degree under the fourth count of the indictment because the People failed toestablish that the value of the stolen property exceeded $1,000. The evidence withrespect to the value of the jar of coins and the television set consisted of "[c]onclusorystatements and rough estimates of value[, which] are not sufficient" to satisfy thatelement of the crime (People vLoomis, 56 AD3d 1046, 1047 [2008]). "Consequently, we cannot on this recordconclude 'that the jury ha[d] a reasonable basis for inferring, rather than speculating, thatthe value of the property exceeded the statutory threshold' of $1,000" (People v Brink, 78 AD3d1483, 1484 [2010], lv denied 16 NY3d 742 [2011], reconsiderationdenied 16 NY3d 828 [2011]). Nevertheless, because we further conclude that theevidence is legally sufficient to support a conviction of petit larceny, we reverse theconviction of grand larceny in the fourth degree under Penal Law § 155.30(1) and dismiss the fourth count of the indictment without prejudice to the People to fileor re-present to another grand jury any appropriate charge under that count (see People v Jean-Philippe,101 AD3d 1582, 1583 [2012]; People v Pallagi, 91 AD3d 1266, 1268 [2012]).
Although defendant failed to preserve for our review his further contention that the[*2]evidence is legally insufficient to support hisconviction of grand larceny in the fourth degree under the sixth count of the indictment,we exercise our power to review that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]), and we conclude that the conviction of thatcount is not supported by legally sufficient evidence (see generally People v Danielson, 9 NY3d 342, 349[2007]). The sixth count of the indictment alleged that defendant stole a debit card issuedby Bank of America to a specified person, but the People failed to establish that suchcard was stolen by defendant. We therefore reverse the remaining conviction of grandlarceny in the fourth degree and dismiss the sixth count of the indictment.
With respect to the remaining counts of the indictment, we agree with defendant thatCounty Court erred in allowing the People to introduce evidence concerning anuncharged burglary to prove his identity as the perpetrator of the burglary and petitlarceny charged in the indictment. The instant crime is "not so unique as to allowadmission of evidence of the [uncharged burglary] on the theory of the similarity of themodus operandi" (People v Condon, 26 NY2d 139, 144 [1970]; seePeople v Mateo, 93 NY2d 327, 332 [1999]). The court further erred in admitting thetestimony of a witness who identified defendant in an out-of-court photo array procedureand thereafter identified him in court. The People failed to satisfy their obligationpursuant to CPL 710.30 inasmuch as no statutory notice was given by the People withrespect to their intent to offer "testimony regarding an observation of the defendant eitherat the time or place of the commission of the offense or upon some other occasionrelevant to the case, to be given by a witness who has previously identified him as such"(CPL 710.30 [1]; see People vNolasco, 70 AD3d 972, 973-974 [2010]). The errors in admitting evidence ofthe uncharged burglary and the identification of defendant are not harmless, consideredsingularly or in combination, inasmuch as the proof of defendant's guilt is notoverwhelming, and there is a significant probability that the jury would have acquitteddefendant had it not been for either of the errors (see generally People v Arafet, 13 NY3d 460, 467 [2009];People v Crimmins, 36 NY2d 230, 241-242 [1975]). We therefore reverse theconviction of burglary in the second degree, criminal possession of stolen property in thefifth degree and petit larceny, and we grant defendant a new trial under counts three, nineand 10 of the indictment.
In light of our decision, we need not address defendant's contention that he wasdenied a fair trial by prosecutorial misconduct. We nevertheless note our disapproval ofthe prosecutor's pervasive misconduct during summation. The prosecutor inappropriatelyand repeatedly vouched for the credibility of prosecution witnesses (see People v Moye, 12 NY3d743, 744 [2009]), suggested that defendant was a liar (see People v Fiori,262 AD2d 1081, 1081 [1999]), characterized defendant's testimony as "smoke andmirrors" (see People vSpann, 82 AD3d 1013, 1015 [2011]), and otherwise improperly denigrated thedefense (see People vGrady, 40 AD3d 1368, 1374 [2007], lv denied 9 NY3d 923[2007]).
Finally, in view of our determination, we do not address defendant's remainingcontentions. Present—Centra, J.P., Peradotto, Carni, Lindley and Whalen, JJ.