People v. Bowers

145 A.D.2d 981, 536 N.Y.S.2d 352, 1988 N.Y. App. Div. LEXIS 14080

Opinion

— Judgment unanimously modified on the law and as modified affirmed and defendant remanded to Yates County Court for resentencing, all in accordance with the following memorandum: On January 22, 1987, defendant pleaded guilty to grand larceny in the third degree and sexual abuse in the first degree in full satisfaction of charges in two separate indictments. He was sentenced as a second felony offender to concurrent terms of imprisonment of 2 to 4 years. On appeal, defendant contends that his conviction for grand larceny in the third degree should be reduced to petit larceny. We agree.

The indictment charging grand larceny was dated September 2, 1986 and alleged that defendant stole property having a value in excess of $250 in violation of Penal Law § 155.30. By amendment effective November 1, 1986, grand larceny in the fourth degree (formerly third degree) was redefined to require proof that the value of the stolen property exceeded $1,000. During the plea colloquy, the prosecutor indicated that the People’s proof would demonstrate that the stolen property had a value of approximately $400. Defendant was entitled to application of the amended statute because, at the time of entry of the plea and sentencing, the proof under that indictment supported only a conviction for petit larceny under Penal Law § 155.25. The judgment is modified accordingly, and defendant is remanded to Yates County Court for resentencing (People v Behlog, 142 AD2d 983). (Appeal from judgment of Yates County Court, DePasquale, J. — grand larceny, third degree; sexual abuse, first degree.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.