People v. Shannon

269 A.D.2d 839, 703 N.Y.S.2d 764, 2000 N.Y. App. Div. LEXIS 1774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2000
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [1]), defendant contends that the evidence of value is legally insufficient in several respects. Defendant made a general motion to dismiss based on legally insufficient evidence and thus failed to preserve for our review the specific grounds raised on appeal (see, People v Gray, 86 NY2d 10, 19). In any event, the evidence is legally sufficient. There is no requirement with respect to Penal Law § 165.45 that the People prove that defendant knew the value of the property (see, People v Logan, 243 AD2d 920, 922, lv denied 91 NY2d 876).

Because defendant did not object to the prosecutor’s opening statement, “the prosecutor was deprived of an opportunity to correct any purported deficiencies” (People v Velez, 211 AD2d 524, 525). “[A]lthough a trial court can no doubt direct acquittal based on the prosecutor’s opening statement, this should be done only upon an affirmative showing that the prosecutor is not entitled to a conviction because the charge cannot be sustained under any view of the evidence and then only after the prosecutor has been given an opportunity to correct the deficiency in his opening” (People v Kurtz, 51 NY2d 380, 385, cert denied 451 US 911). (Appeal from Judgment of Genesee County Court, Noonan, J. — Criminal Possession Stolen Property, 4th Degree.) Present — Pine, J. P., Hayes, Scudder and Lawton, JJ.