People v. Bell

55 A.D.2d 624, 389 N.Y.S.2d 632, 1976 N.Y. App. Div. LEXIS 15354

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1976
• Status: Published

Opinion

by defendant from a judgment of the Supreme Court, Kings County, rendered October 10, 1975, convicting him of burglary in the third degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reducing the conviction of grand larceny in the third degree to one of petit larceny. As so modified, judgment affirmed. The People proved beyond a reasonable doubt, as found by the jury, that defendant had burglarized a grocery store operated by Mrs. Thorton at 365 Saratoga Avenue, Brooklyn, New York, and had stolen therefrom certain items, including a black and white television set and an adding machine. Mrs. Thorton testified that the television set cost $125 when originally purchased, and that the adding machine had been purchased for $60 or $70 a year prior to the theft. The other items taken, cigarettes, food stamps and cash, had a total value of $167. There was no evidence submitted with regard to the market value of the television set and the adding machine at the time of the theft. Under these circumstances, there was insufficient proof submitted by the People to establish that the defendant had stolen property having an aggregate value in excess of $250, a necessary prerequisite for conviction of grand larceny in the third degree (Penal Law, § 155.30), and such conviction may not stand (see People v Freeman, 44 AD2d 843). The evidence presented did establish the crime of petit larceny. Furthermore, in charging the jury, the trial court neglected to offer any instruction with regard to the proper method of evaluating the stolen property for the purpose of determining the degree of the crime committed (see Penal Law, § 155.20, subd 1; People v Freeman, supra), and it failed to equate the charge actually given with the evidence presented, as it was required to do (CPL 300.10, subd 2). There is no need to remand for resentence since defendant has already served the maximum time to which he could be sentenced on the petit larceny conviction (see Penal Law, §§ 155.25, 70.15). Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Titone, JJ., concur.