| People v Guarnieri |
| 2014 NY Slip Op 08067 [122 AD3d 1078] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRonnie J. Guarnieri Jr., Appellant. |
Paul R. Corradini, Elmira, for appellant.
Kirk O. Martin, District Attorney, Owego (Eric H. Gartenman of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered December 3, 2012, upon a verdict convicting defendant of the crime of grandlarceny in the third degree.
Defendant was charged by indictment with the crime of grand larceny in the thirddegree based upon allegations that he stole aluminum irrigation pipes from a farmlocated in the Town of Owego, Tioga County. Following a trial at which defendantwaived counsel and represented himself, he was convicted as charged. Defendant wassubsequently sentenced, as a second felony offender, to a prison term of 3 to 6 years andwas also directed to pay restitution. Upon this appeal by defendant, we now reverse thejudgment of conviction and remit for a new trial.
Initially, we reject defendant's arguments that the evidence was legally insufficientand that the verdict was against the weight of the evidence. As relevant here, grandlarceny in the third degree is established by proof beyond a reasonable doubt thatdefendant stole property that has a value exceeding $3,000 (see Penal Law§ 155.35 [1]; People v Khan, 18 NY3d 535, 542 [2012]). In this regard,the value of stolen property is "the market value of the property at the time and place ofthe crime, or if such cannot be satisfactorily ascertained, the cost of replacement of theproperty within a reasonable time after the crime" (Penal Law § 155.20 [1];see People v Helms, 119AD3d 1153, 1154 [2014]; People v Loomis, 56 AD3d 1046, 1047 [2008]). Althoughexpert evidence as to value is not necessary (see People v Helms, 119 AD3d at1155; People v Sheehy, 274 AD2d 844, 845 [2000], lv denied 95 NY2d938 [2000]), the People are required to proffer something more than conclusorystatements and there must be "a basis of knowledge" for a witness's "statement of valuebefore it can be accepted as legally sufficient evidence of such value" (People vLopez, 79 NY2d 402, 404 [1992]; see People v Loomis, 56 AD3d at1047).
Here, one of the victims testified that 40 to 50 pieces of six-inch aluminum pipe werestolen from his property and that he had paid $125 per pipe when he purchased them inthe early 1980s. While such testimony, by itself, is insufficient to establish the currentvalue of the pipes (see People vMorgan, 111 AD3d 1254, 1257 [2013]; People v Vandenburg, 254AD2d 532, 533 [1998], lv denied 93 NY2d 858 [1999]), the victim furthertestified that they were in the same condition as when he purchased them and that theyhad not depreciated in value. The victim exhibited detailed knowledge about irrigationpipes and he testified that, based upon his recent attendance at auctions, he was awarethat the current value of the type of pipes involved here was comparable to the price hepaid for them. Viewing the evidence in a light most favorable to the People, we concludethat the victim's testimony was sufficient to enable the jury to reasonably "infer[,] ratherthan merely speculate[,] that the value of the stolen [items] exceeded the statutorythreshold" (People v Helms, 119 AD3d at 1155; compare People vVandenburg, 254 AD2d at 534). Moreover, while a different verdict would not havebeen unreasonable, when we view the evidence in a neutral light and give the appropriatedeference to the jury's credibility assessments, we are satisfied that the verdict is inaccord with the weight of the evidence (see People v Helms, 119 AD3d at 1155;People v Hardy, 57 AD3d1100, 1102 [2008], lv denied 12 NY3d 784 [2009]).
However, we are persuaded by defendant's assertion that County Court failed toensure that he validly waived his constitutional right to counsel before permitting him torepresent himself at trial. A defendant seeking permission to proceed pro se must"effectuate[ ] a knowing, voluntary and intelligent waiver of the right to counsel" (People v Stone, 22 NY3d520, 525 [2014]; see People v Arroyo, 98 NY2d 101, 103 [2002]; Peoplev McIntyre, 36 NY2d 10, 17 [1974]). To this end, the trial court is required to"conduct a 'searching inquiry' to clarify that [the] defendant understands the ramificationsof such a decision" (People v Stone, 22 NY3d at 525; see People v Providence, 2NY3d 579, 580 [2004]; People v Arroyo, 98 NY2d at 103-104; People vSlaughter, 78 NY2d 485, 491 [1991]). The court's inquiry " 'mustaccomplish the goals of adequately warning a defendant of the risks inherent inproceeding pro se, and apprising a defendant of the singular importance of the lawyer inthe adversarial system of adjudication' " (People v Crampe, 17 NY3d469, 482 [2011], cert denied 565 US &mdash, 132 S Ct 1746 [2012], quotingPeople v Arroyo, 98 NY2d at 104; accord People v Smith, 92 NY2d 516,520 [1998]; People vDashnaw, 116 AD3d 1222, 1231 [2014], lv denied 23 NY3d 1019[2014]). As the reviewing court, we may "look to the whole record, not simply to thewaiver colloquy, in order to determine if a defendant effectively waived counsel"(People v Providence, 2 NY3d at 583).
Having carefully reviewed the entire record, we conclude that County Court's inquirywas insufficient to establish that defendant knowingly, intelligently and voluntarilywaived his right to counsel. We recognize that defendant unequivocally expressed hisdesire to represent himself,[FN*] acknowledged that he was aware of hisconstitutional right to an attorney and that he would be appointed an attorney if he couldnot afford one, and confirmed that he had made the decision to represent himself on hisown accord. In addition, before determining that defendant had sufficient competenceand intelligence to represent himself, County Court inquired as to defendant's age,education and employment status, which revealed that defendant was 48 years old, heldan Associate's degree and was employed as a truck driver. The court also questioneddefendant regarding his familiarity with certain legal concepts, to which defendantdemonstrated a rudimentary understanding of, among other things, the order of a criminaltrial and the concept of hearsay. Significantly, however, while the court also adviseddefendant of several additional legal concepts, it did not sufficiently advise him of "the'dangers and disadvantages' of proceeding pro se and the value of trained trial counselknowledgeable about criminal law and procedure" (People v Yu-Jen Chang, 92 AD3d 1132, 1133 [2012],quoting People v Providence, 2 NY3d at 582). In fact, with respect to the dangersof self-representation, the court merely noted that defendant risked "losing objectivity"by representing himself. Absent from County Court's inquiry was any warning thatdefendant's "lack of knowledge, relative to that of a lawyer, [would] be detrimental if[he] cho[se] to waive the right to counsel" (People v Dashnaw, 116 AD3d at1231 [internal quotation marks and citations omitted]). Having failed to focus on thiscritical consideration before permitting defendant to represent himself, we are of theview that County Court's inquiry was insufficient to permit a finding that defendantknowingly, intelligently and voluntarily waived his right to counsel. Thus, the judgmentof conviction must be reversed and the matter remitted for a new trial.
Peters, P.J., Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Tioga County for a newtrial.
Footnote *:Although defendantappeared pro se since arraignment, County Court's inquiry into defendant's decision torepresent himself did not occur until immediately prior to the commencement of juryselection (see generally People vLott, 23 AD3d 1088, 1088-1089 [2005]).