Appeal by defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered March 17,1983, convicting her of grand larceny in the second degree and fraudulent accosting, upon a jury verdict, and sentencing her to an indeterminate sentence of IV2 to AV2 years’ imprisonment and a concurrent definite sentence of one year.
Judgment modified, on the law and as a matter of discretion in the interest of justice, by reducing the conviction of grand larceny in the second degree to one of petit larceny, and vacating the sentence imposed thereon. As so modified, judgment affirmed.
In order to convict defendant of the crime of grand larceny in the second degree it was incumbent upon the People to prove beyond a reasonable doubt that the value of the stolen property exceeded $1,500 (Penal Law § 155.35). The term “value” is defined in Penal Law § 155.20 (1) as: “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime”.
In our view, the People have not met their burden on the issue of value.
We have no quarrel with the key principle set forth by the dissent, i.e., that an owner is competent to testify as to the value of his or her jewelry in a criminal prosecution (State v Baker, 182 Conn 52, 437 A2d 843, 848; State v Hammond, 6 Wn App 459, 493 P2d 1249). As the court held in State v Hammond (supra, at p 461, p 1251): “the general rule requiring that a proper foundation be laid, showing the witness to have knowledge upon the subject before he can qualify to testify as to market value, does not apply to a party who is testifying to the value of property which he owns. The owner of property is presumed to be familiar with its value by reason of inquiries, comparisons, purchases and sales. The weight of such testimony is another question and may be affected by disclosures made upon cross-examination as to the basis for such knowledge, but this will not disqualify the owner as a witness”. In this regard the owner’s testimony regarding the purchase price of the property may be probative on the issue of value so long as the property is of the sort not “subject to prompt depreciation or obsolescence”, e.g., jewelry (State v Baker, supra, p 63, p 849). However, these principles [284] cannot be utilized in the case at bar to sustain defendant’s conviction of grand larceny in the second degree.
It is well settled that “[w]here the owner repeats particular out-of-court statements by an expert for their truth or purports to give the expert’s view, he improperly uses hearsay evidence. The owner’s opinion in such cases is inadmissible because it introduces expert testimony without producing the expert” (Hartford Acc. & Indem. Co. v Dikomey Mfg. Jewelers, 409 A2d 1076, 1080 [DC App]; see also, State v Baker, supra; Yonan Rug Serv. v United Servs. Auto. Assn., 69 A2d 62 [DC App]). Indeed, in State v Baker (supra), the Supreme Court of Connecticut specifically approved a ruling of a trial court which barred the victim from repeating an appraiser’s out-of-court statement as to the value of stolen property. In the case at bar, the victim, on her direct testimony, simply repeated the particular values ascribed to her jewelry by an appraiser in a report prepared in 1979.
The record indicates that the People initially asked the victim “what was the approximate value of the jewelry?” In response to defense counsel’s objection, which was sustained, the People advised the court at a sidebar conference that the victim was “competent to testify to her opinion as to her property’s value” based on “the prices she may have paid for it”. At that point, the court correctly reminded the People of the prior testimony in the trial which indicated that the items of stolen jewelry were either won by the victim’s husband or were gifts. The court thereupon advised the prosecutor that (1) under the circumstances, the purchase price could not serve as the basis of any testimony by the victim as to the value of the stolen property and (2) if he (the prosecutor) wanted to “qualify it in some way, that’s something else”. The prosecutor indicated that he understood the court’s ruling, and shortly thereafter, during direct examination of the victim, elicited the improper hearsay testimony as to the value of the stolen jewelry. The following excerpt from the victim’s direct testimony is illustrative on this point:
“Q What was the value of the jewelry that you had on your person that was given by you to defendant?
“A In 1979, the ring was appraised for 23 — the engagement ring was appraised for 2300. The marriage band was appraised for 400. The gold watch was appraised for $1,000 and the pendent was appraised for approximately the same as the engagement ring.
“Q Where did you have this jewelry appraised?
“A Miami Beach, Florida.
[285] “Q And do you remember where you had it appraised?
“A Yes, I have the appraisal with me”.
This testimony, elicited by the People on direct examination of the victim, was hearsay and was erroneously admitted into evidence (Hartford Acc. & Indem. Co. v Dikomey Mfg. Jewelers, supra; State v Baker, supra; People v Bunn, 63 AD2d 1031).
As no other evidence of value of the stolen property was adduced, the People failed to meet their burden of proving every element of the crime of grand larceny in the second degree beyond a reasonable doubt. However, the evidence presented did establish the crime of petit larceny, which requires no proof of value, and we have modified the judgment accordingly (People v Cahill, 83 AD2d 589).
There is no need to remit for resentencing since defendant has already served the maximum time to which she could have been sentenced on the petit larceny conviction (People v Cahill, supra; People v Bell, 55 AD2d 624).
Finally, no reversible error was committed by the denial of defendant’s Sandoval motion. Defendant moved to preclude the prosecution from cross-examining her as to her prior misdemeanor convictions. Specifically, defendant argued that she would be prejudiced by such cross-examination since the underlying facts of those convictions were similar to those at bar. Criminal Term denied defendant’s motion. It has been consistently held that the trial court is accorded broad discretion in its assessment of the probative value of evidence of prior convictions and the potential prejudice to the defendant resulting from the admission of this evidence (see, People v Sandoval, 34 NY2d 371; People v Pavao, 59 NY2d 282; People v Hall, 99 AD2d 843).
Free access — add to your briefcase to read the full text and ask questions with AI
Appeal by defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered March 17,1983, convicting her of grand larceny in the second degree and fraudulent accosting, upon a jury verdict, and sentencing her to an indeterminate sentence of IV2 to AV2 years’ imprisonment and a concurrent definite sentence of one year.
Judgment modified, on the law and as a matter of discretion in the interest of justice, by reducing the conviction of grand larceny in the second degree to one of petit larceny, and vacating the sentence imposed thereon. As so modified, judgment affirmed.
In order to convict defendant of the crime of grand larceny in the second degree it was incumbent upon the People to prove beyond a reasonable doubt that the value of the stolen property exceeded $1,500 (Penal Law § 155.35). The term “value” is defined in Penal Law § 155.20 (1) as: “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime”.
In our view, the People have not met their burden on the issue of value.
We have no quarrel with the key principle set forth by the dissent, i.e., that an owner is competent to testify as to the value of his or her jewelry in a criminal prosecution (State v Baker, 182 Conn 52, 437 A2d 843, 848; State v Hammond, 6 Wn App 459, 493 P2d 1249). As the court held in State v Hammond (supra, at p 461, p 1251): “the general rule requiring that a proper foundation be laid, showing the witness to have knowledge upon the subject before he can qualify to testify as to market value, does not apply to a party who is testifying to the value of property which he owns. The owner of property is presumed to be familiar with its value by reason of inquiries, comparisons, purchases and sales. The weight of such testimony is another question and may be affected by disclosures made upon cross-examination as to the basis for such knowledge, but this will not disqualify the owner as a witness”. In this regard the owner’s testimony regarding the purchase price of the property may be probative on the issue of value so long as the property is of the sort not “subject to prompt depreciation or obsolescence”, e.g., jewelry (State v Baker, supra, p 63, p 849). However, these principles [284] cannot be utilized in the case at bar to sustain defendant’s conviction of grand larceny in the second degree.
It is well settled that “[w]here the owner repeats particular out-of-court statements by an expert for their truth or purports to give the expert’s view, he improperly uses hearsay evidence. The owner’s opinion in such cases is inadmissible because it introduces expert testimony without producing the expert” (Hartford Acc. & Indem. Co. v Dikomey Mfg. Jewelers, 409 A2d 1076, 1080 [DC App]; see also, State v Baker, supra; Yonan Rug Serv. v United Servs. Auto. Assn., 69 A2d 62 [DC App]). Indeed, in State v Baker (supra), the Supreme Court of Connecticut specifically approved a ruling of a trial court which barred the victim from repeating an appraiser’s out-of-court statement as to the value of stolen property. In the case at bar, the victim, on her direct testimony, simply repeated the particular values ascribed to her jewelry by an appraiser in a report prepared in 1979.
The record indicates that the People initially asked the victim “what was the approximate value of the jewelry?” In response to defense counsel’s objection, which was sustained, the People advised the court at a sidebar conference that the victim was “competent to testify to her opinion as to her property’s value” based on “the prices she may have paid for it”. At that point, the court correctly reminded the People of the prior testimony in the trial which indicated that the items of stolen jewelry were either won by the victim’s husband or were gifts. The court thereupon advised the prosecutor that (1) under the circumstances, the purchase price could not serve as the basis of any testimony by the victim as to the value of the stolen property and (2) if he (the prosecutor) wanted to “qualify it in some way, that’s something else”. The prosecutor indicated that he understood the court’s ruling, and shortly thereafter, during direct examination of the victim, elicited the improper hearsay testimony as to the value of the stolen jewelry. The following excerpt from the victim’s direct testimony is illustrative on this point:
“Q What was the value of the jewelry that you had on your person that was given by you to defendant?
“A In 1979, the ring was appraised for 23 — the engagement ring was appraised for 2300. The marriage band was appraised for 400. The gold watch was appraised for $1,000 and the pendent was appraised for approximately the same as the engagement ring.
“Q Where did you have this jewelry appraised?
“A Miami Beach, Florida.
[285] “Q And do you remember where you had it appraised?
“A Yes, I have the appraisal with me”.
This testimony, elicited by the People on direct examination of the victim, was hearsay and was erroneously admitted into evidence (Hartford Acc. & Indem. Co. v Dikomey Mfg. Jewelers, supra; State v Baker, supra; People v Bunn, 63 AD2d 1031).
As no other evidence of value of the stolen property was adduced, the People failed to meet their burden of proving every element of the crime of grand larceny in the second degree beyond a reasonable doubt. However, the evidence presented did establish the crime of petit larceny, which requires no proof of value, and we have modified the judgment accordingly (People v Cahill, 83 AD2d 589).
There is no need to remit for resentencing since defendant has already served the maximum time to which she could have been sentenced on the petit larceny conviction (People v Cahill, supra; People v Bell, 55 AD2d 624).
Finally, no reversible error was committed by the denial of defendant’s Sandoval motion. Defendant moved to preclude the prosecution from cross-examining her as to her prior misdemeanor convictions. Specifically, defendant argued that she would be prejudiced by such cross-examination since the underlying facts of those convictions were similar to those at bar. Criminal Term denied defendant’s motion. It has been consistently held that the trial court is accorded broad discretion in its assessment of the probative value of evidence of prior convictions and the potential prejudice to the defendant resulting from the admission of this evidence (see, People v Sandoval, 34 NY2d 371; People v Pavao, 59 NY2d 282; People v Hall, 99 AD2d 843).
Although, under the circumstances, Criminal Term should have limited the prosecutor’s inquiry to some degree, the record indicates that the prosecutor voluntarily restricted his inquiry on cross-examination to 4 of the 8 prior convictions and did not inquire into the underlying facts of those convictions. Rather, his inquiry was restricted to impeachment of the defendant’s credibility by showing she could not remember the dates of her convictions but could remember what occurred on what she claimed was an uneventful day during which the crimes occurred. Consequently, the failure of the court to so restrict his inquiry may be considered harmless error. Mangano, Gibbons and O’Connor, JJ., concur.
Titone, J. P., dissents and votes to affirm the judgment, with the following memorandum: Defendant has been convicted of grand larceny in the second degree and fraudulent accosting in connection with her participation in a confidence scheme. At [286] trial, the victim testified that the stolen property, consisting of diamonds and gold jewelry, which were never recovered, was worth a total of $6,000, far above the floor of and in excess of $1,500 set for grand larceny in the second degree (Penal Law § 155.35). The majority, finding this proof insufficient, modifies the judgment by reducing the conviction to petit larceny. I respectfully dissent.
It is ancient and universal learning that the owner of an article is competent to estimate its worth “whether he is generally familiar with such values or not” (3 Wigmore, Evidence § 716, at 56 [Chadbourn rev 1970]; see also, Admissibility of Opinion of Nonexpert Owner as to Value of Chattel, Ann., 37 ALR2d 967), a rule consistently followed by the courts of this State (see, e.g., People v Gaul, 22 AD2d 805 [cited in 3 Wigmore, op. cit., § 716, n 2, at 57]; Glazer v Quittman, 84 Misc 2d 561). As put by the Connecticut Supreme Court, “The rule establishing an owner’s competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered * * * and the common experience that an owner is familiar with her property and knows what it is worth” (State v Baker, 182 Conn 52, 60, 437 A2d 843, 848). On this basis, the decisions almost uniformly hold that a nonexpert owner may testify as to the value of his or her jewelry in a criminal prosecution (State v Baker, supra; State v Giles, 68 Ohio Opns 2d 142, 322 NE2d 362; State v Hammond, 6 Wn App 459, 462, n 2, 493 P2d 1249, 1251 [citing cases]; Ann., op. cit., 37 ALR2d 967, 1033, § 43; cf. People v Liquori, 24 AD2d 456).