People v Helms

2014 NY Slip Op 05374 [119 AD3d 1153]

July 17, 2014

Appellate Division, Third Department

As corrected through Wednesday, August 27, 2014

[*1]

1 The People of the State of New York, Respondent, vKelly L. Helms, Appellant.

John Ferrara, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.

Rose, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered June 5, 2012, upon a verdict convicting defendant of the crimes of grandlarceny in the third degree, grand larceny in the fourth degree, criminal possession ofstolen property in the third degree (two counts), criminal possession of stolen property inthe fifth degree (two counts), petit larceny and obstructing governmental administrationin the second degree.

Defendant was charged with, among other things, burglary in the second degree,after property stolen from several burglarized homes was found in her residence.Following a jury trial, she was convicted of grand larceny in the third degree, grandlarceny in the fourth degree, criminal possession of stolen property in the third degree(two counts), criminal possession of stolen property in the fifth degree (two counts), petitlarceny and obstructing governmental administration in the second degree. County Courtsentenced her to a prison term of 21/3 to 7 years on the convictions forgrand larceny in the third degree and criminal possession of stolen property in the thirddegree, 11/3 to 6 years on the conviction for grand larceny in the fourthdegree and one year on the remaining misdemeanor convictions, with all sentences to runconcurrently. She now appeals, arguing that the People did not establish the value of thestolen property and her sentence was an abuse of discretion.

The People were required to establish, with respect to grand larceny in the thirddegree [*2]and criminal possession of stolen property inthe third degree, that the value of the stolen goods exceeded $3,000 (see PenalLaw §§ 155.35 [1]; 165.50). With respect to grand larceny in thefourth degree, the People were required to establish that the value of the stolen goodsexceeded $1,000 (see Penal Law § 155.30 [1]). In this context,value is defined as "the market value of the property at the time and place of the crime, orif such cannot be satisfactorily ascertained, the cost of replacement of the property withina reasonable time after the crime" (Penal Law § 155.20 [1]; see People v Adams, 8 AD3d893, 893-894 [2004]; People v Sheehy, 274 AD2d 844, 845 [2000], lvdenied 95 NY2d 938 [2000]). "In determining the value of stolen property, the juryneed only have a reasonable, rather than speculative, basis for inferring that the valueexceeded" the statutory requirement (People v Adams, 8 AD3d at 894; seePeople v Sheehy, 274 AD2d at 845).

Based upon our review of the record, there was sufficient evidence regarding the costof the items and their condition for the jury to reasonably infer that the value exceededthe relevant statutory thresholds. Over 100 pieces of jewelry that belonged to one of thevictims were recovered and submitted to the jury with values placed on each piece. Thevictim testified that she is a frequent purchaser of jewelry and assigned value to eachpiece based on her purchase of them or information obtained from her mother, catalogsor Internet research as to the cost of the items. Defendant did not object to the victim'shearsay testimony and made only a general objection to the valuation of the itemssubmitted to the jury (see CPL 470.05 [2]; People v Bertone, 16 AD3d 710, 712 [2005], lvdenied 5 NY3d 759 [2005]; People v Cody, 260 AD2d 718, 721 [1999],lv denied 93 NY2d 1002 [1999]; People v McGuinness, 245 AD2d 701,702 [1997]). Further, any deficiency in the victim's testimony regarding the condition ofthe items was alleviated by the fact that all of the pieces of jewelry were admitted intoevidence and available for the jury to inspect and review (see People vMcPherson, 286 AD2d 616, 616 [2001], lv denied 97 NY2d 685 [2001];People v Mayerhofer, 283 AD2d 672, 675 [2001]). Contrary to defendant'scontention, expert testimony was not required, inasmuch as "opinion testimony by a laywitness is competent to establish the value of the property if the witness is acquaintedwith the value of similar property" (People v Sheehy, 274 AD2d at 845; seePeople v Adams, 8 AD3d at 894; see also People v Bravo, 295 AD2d 213,214 [2002], lv denied 99 NY2d 556 [2002]).

Another victim testified that the items stolen from his residence included, amongother things, a wedding ring that cost approximately $400 and a diamond ring that cost$1,400, both of which were in good condition. Although defendant faults this victim'stestimony as containing rough estimations, his testimony as to the value of the diamondring and its condition was unequivocal and it alone exceeds the statutory threshold. Evenaccepting the lowest estimates provided for the remaining items, the combined value ofthe jewelry and currency stolen from this victim's residence is well in excess of thestatutory threshold. Viewing the evidence in the light most favorable to the People, weconclude that a rational jury could infer rather than merely speculate that the value of thestolen property exceeded the statutory threshold (see People v Bleakley, 69 NY2d490, 495 [1987]). Further, viewing the evidence in a neutral light, and giving appropriatedeference to the jury's credibility determinations, we decline to disturb the verdicts asagainst the weight of the evidence (see People v Bruno, 63 AD3d 1297, 1300 [2009], lvdenied 13 NY3d 858 [2009]; People v Adams, 8 AD3d at 894).

We also decline to modify the sentence. We are not persuaded that County Courtimposed the sentence as a punishment for defendant's exercise of her right to trial, andwe note that the court relied on appropriate sentencing factors and exercised a degree ofleniency by [*3]running the sentences concurrently andordering shock incarceration (see People v Matthews, 101 AD3d 1363, 1366 [2012],lv denied 20 NY3d 1101 [2013]; People v Vargas, 72 AD3d 1114, 1120-1121 [2010], lvdenied 15 NY3d 758 [2010]; People v Merck, 63 AD3d 1374, 1376 [2009], lvdenied 13 NY3d 861 [2009]). Moreover, the Department of Corrections andCommunity Supervision's publicly maintained inmate database indicates that defendanthas already been released from custody. Nevertheless, the sentence of 11/3to 6 years for the conviction for grand larceny in the fourth degree is illegal (seePenal Law § 70.00 [2] [e]; [3] [b]), and we will reduce it to11/3 to 4 years (see People v LaSalle, 95 NY2d 827, 829[2000]).

Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgmentis modified, by reducing defendant's sentence for grand larceny in the fourth degreeunder count 6 of the indictment to 11/3 to 4 years and, as so modified,affirmed.