People v. Oliphant

127 A.D.2d 802, 512 N.Y.S.2d 200, 1987 N.Y. App. Div. LEXIS 43288

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rubin, J.), rendered June 28, 1983, convicting him of attempted grand larceny in the second degree, criminal mischief in the second degree, possession of burglar’s tools, and criminal trespass in the third degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reducing the conviction of attempted grand larceny in the second degree to one of attempted petit larceny, and by reducing the conviction of criminal mischief in the second degree to criminal mischief in the fourth degree, and vacating the sentences imposed thereon. As so modified, the judgment is affirmed.

As in the case of the codefendant, Jerald Butler, we have modified the judgment herein by reducing the defendant’s conviction of attempted grand larceny in the second degree to one of attempted petit larceny, and by reducing the conviction of criminal mischief in the second degree to one of criminal mischief in the fourth degree, on the basis of an absence of competent nonhearsay testimony as to the value of the cables which were stolen in this case (see, People v Butler, 123 AD2d 877).

There is no need to remit for resentencing since the defendant has already served the maximum time to which he could have been sentenced on the attempted petit larceny and criminal mischief in the fourth degree convictions (see, People v Womble, 111 AD2d 283; People v Cahill, 83 AD2d 589).

We have reviewed the defendant’s remaining contentions and have found them to be without merit. Mangano, J. P., Bracken, NiehofF and Eiber, JJ., concur.