People v. Riddick

69 A.D.2d 826, 415 N.Y.S.2d 43, 1979 N.Y. App. Div. LEXIS 11487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1979
• Status: Published

Opinion

Appeal by defendant from (1) a judgment of the County Court, Nassau County, rendered November 28, 1977, convicting him of burglary in the third degree, grand larceny in the third degree and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence, and (2) five judgments of the same court all rendered December 5, 1977, convicting him of two counts of burglary in the third degree and three counts of attempted burglary in the third degree, upon his pleas of guilty, and imposing sentence. Judgment rendered November 28, 1977, modified, on the law, by reducing (1) the conviction of grand larceny in the third degree to one of petit larceny and reversing the sentence thereon and (2) the conviction of criminal possession of stolen property in the second degree to criminal possession of stolen property in the third degree and reversing the sentence thereon. As so modified, judgment affirmed. Judgments rendered December 5, 1977, affirmed. With respect to the judgment rendered November 28, 1977, the People concede that they failed to prove that the market value of the property involved in the theft was in excess of $250. Therefore, the evidence presented did not establish the crimes of grand larceny in the third degree or criminal possession of stolen property in the second degree. However, the evidence did establish petit larceny and criminal possession of stolen property in the third degree. There is no need to remand for resentence since defendant has already served the maximum time for which he could be sentenced on these two convictions (see People v Freeman, 44 AD2d 843; People v Bell, 55 AD2d 624). The defendant was seen at the scene of the crime in possession of stolen property several minutes after the offense took place. Under these circumstances, the only possible inference was that he was the burglar (cf. People v Galbo, 218 NY 283; People v Batten, 40 AD2d 549, affd 31 NY2d 737). Accordingly, any errors in the charge to the jury were harmless beyond a reasonable doubt (People v Crimmins, 36 NY2d 230; People v Tubwell, 45 AD2d 749). Hopkins, J. P., Suozzi, Cohalan and Hargett, JJ., concur.