| People v Slack |
| 2016 NY Slip Op 01930 [137 AD3d 1568] |
| March 18, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJohn J. Slack, Also Known as John Slack, Also Known as Jonathan J. Slack,Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered April 9, 2014. The judgment convicted defendant, upon a jury verdict, of grandlarceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the conviction topetit larceny and vacating the sentence, and as modified the judgment is affirmed and thematter is remitted to Genesee County Court for further proceedings in accordance withthe following memorandum: Defendant appeals from a judgment convicting him upon ajury verdict of grand larceny in the third degree (Penal Law § 155.35).Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence inasmuch as he moved for a trial order ofdismissal on a ground different from that raised on appeal (see People v Gray, 86NY2d 10, 19 [1995]). We nevertheless exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]), and weagree with defendant that there is insufficient evidence that the value of the stolenproperty exceeded $3,000. The value of stolen property is "the market value of theproperty at the time and place of the crime, or if such cannot be satisfactorily ascertained,the cost of replacement of the property within a reasonable time after the crime" (PenalLaw § 155.20 [1]). It is well settled that "a victim must provide a basis ofknowledge for his [or her] statement of value before it can be accepted as legallysufficient evidence of such value" (People v Lopez, 79 NY2d 402, 404 [1992]).Furthermore, "[c]onclusory statements and rough estimates of value are not sufficient" toestablish the value of the property (People v Loomis, 56 AD3d 1046, 1047 [2008]; see People v Walker, 119AD3d 1402, 1402-1403 [2014]; People v Pallagi, 91 AD3d 1266, 1269 [2012]). "Althougha 'victim is competent to supply evidence of original cost' . . . , 'evidence ofthe original purchase price, without more, will not satisfy the People's burden' "(People v Geroyianis, 96AD3d 1641, 1644 [2012], lv denied 19 NY3d 996 [2012],reconsideration denied 19 NY3d 1102 [2012]).
Here, the victim testified that several specific items were taken, but the only evidenceof the value of those items was the victim's testimony regarding the purchase price ofsome of them, and her hearsay testimony regarding a purported expert's appraisal of someof the property, which was based solely on her description of certain jewelry to thepurported expert. Based on the evidence of value in the record, we cannot conclude "thatthe jury ha[d] a reasonable basis for inferring, rather than speculating, that the value ofthe property exceeded the statutory threshold" of $3,000 (People v Sheehy, 274AD2d 844, 845 [2000], lv denied 95 NY2d 938 [2000]; cf. People v Pepson, 61 AD3d1399, 1400 [2009], lv denied 12 NY3d 919 [2009]). We therefore concludethat the evidence is legally insufficient to establish that the value of the property takenexceeded $3,000 (see People v Echlin, 188 AD2d 1042, 1042 [1992], lvdenied 81 NY2d 885 [1993]; see also People v Quigley, 70 AD3d 1411, 1412 [2010]).The evidence is legally sufficient, however, to establish that defendant committed thelesser included offense of petit larceny (see Penal Law § 155.25)," 'which requires no proof [*2]of value' "(Quigley, 70 AD3d at 1412). We therefore modify the judgment by reducing theconviction to that crime and by vacating the sentence, and we remit the matter to CountyCourt for sentencing on the conviction of petit larceny (see CPL 470.15 [2][a]).
Defendant's contention that the court erred in imposing restitution withoutconducting a hearing is moot, inasmuch as we have vacated the sentence. We note,however, that we agree with defendant that "the record 'does not contain sufficientevidence to establish the amount [of restitution to be imposed]' " (People vLawson [appeal No. 7], 124 AD3d 1249, 1250 [2015]). Therefore, in view of thefact that we are remitting for sentencing, we further direct that, if the court determinesupon remittal that the sentence should include restitution, the court must conduct ahearing to ascertain the amount of restitution, if any, to be imposed.
Defendant further contends that he was denied effective assistance of counsel basedon defense counsel's failure to challenge a prospective juror for cause or to exercise aperemptory challenge with respect to that prospective juror. We reject that contention. Itis well settled that " 'it is incumbent on defendant to demonstrate the absence ofstrategic or other legitimate explanations' for counsel's alleged shortcomings" (Peoplev Benevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d705, 709 [1988]), and here, defendant "failed to show the absence of a strategicexplanation" for defense counsel's decision not to challenge that prospective juror (People v Irvin, 111 AD3d1294, 1296 [2013], lv denied 24 NY3d 1044 [2014], reconsiderationdenied 26 NY3d 930 [2015] [internal quotation marks omitted]; see People v Boykins, 134AD3d 1542, 1542 [2015]).
The record is insufficient to enable us to review defendant's contention that the courtfailed to respond appropriately to a jury communication (see generally People vKinchen, 60 NY2d 772, 773-774 [1983]), and thus the proper procedural vehicle forraising that contention is by way of a motion pursuant to CPL article 440. Finally,defendant's contentions regarding the severity of the sentence are moot in light of ourdetermination. Present—Smith, J.P., Carni, Lindley and DeJoseph, JJ.