People v. Van Etten

94 A.D.2d 953, 464 N.Y.S.2d 77, 1983 N.Y. App. Div. LEXIS 18429

Opinion

Judgment unanimously modified, on the law and facts, in accordance with memorandum and, as modified, affirmed and defendant remanded to Supreme Court, Erie County, for resentencing. Memorandum: Defendant’s conviction of grand larceny in the second degree (Penal Law, § 155.35) cannot be sustained because the People failed to prove beyond a reasonable doubt that the value of stolen jewelry exceeded $1,500. Market value or replacement cost, not original cost of the stolen property, is required to sustain a larceny conviction (Penal Law, § 155.20, subd 1; People v Harold, 22 NY2d 443, 445). Defendant’s contention that the trial court failed preliminarily to instruct the jury pursuant to CPL 270.40 was not preserved for review (People v Robinson, 36 NY2d 224, 228; CPL 470.05, subd 2) and is harmless error. The judgment is modified by reducing defendant’s conviction for grand larceny in the second degree to the lesser included crime of petit larceny (Penal Law, § 155.20, subd 4). (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — burglary, third degree.) Present — Dillon, P. J., Doerr, Boomer, Green and Schnepp, JJ.