Opinion
2012-10-3
The PEOPLE, etc., respondent, v. JU JU JIANG, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and John F. McGoldrick of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and John F. McGoldrick of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered July 15, 2009, convicting him of grand larceny in the third degree, identity theft in the first degree (four counts), attempted grand larceny in the third degree, scheme to defraud in the first degree, and unlawful possession of personal identification information in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction of attempted grand larceny in the third degree to attempted grand larceny in the fourth degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for the imposition of a sentence to time served on the conviction of attempted grand larceny in the fourth degree.
The defendant's contention that the evidence presented as to the sixth count of the indictment, charging him with attempted grand larceny in the third degree, was legally insufficient to prove that the value of the stolen property exceeded $3,000, was not preserved for appellate review ( seeCPL 470.05 [2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). However, we reach the issue in the exercise of our interest of justice jurisdiction ( see People v. Oates, 33 A.D.3d 823, 823, 823 N.Y.S.2d 184;People v. Jackman, 8 A.D.3d 678, 678–679, 778 N.Y.S.2d 893).
As the People correctly concede, the evidence was legally insufficient to establish that the stolen property had a value in excess of $3,000, as required to support a conviction of attempted grand larceny in the third degree ( seePenal Law §§ 110.00, 155.35[1] ). Nonetheless, the evidence was legally sufficient to support a conviction of the lesser-included offense of attempted grand larceny in the fourth degree ( seePenal Law §§ 110.00, 155.30[1] ). Accordingly, we reduce the defendant's conviction of attempted grand larceny in the third degree to attempted grand larceny in the fourth degree, and vacate the sentence imposed thereon ( seeCPL 470.15 [2][a]; People v. Jackman, 8 A.D.3d at 679, 778 N.Y.S.2d 893). Since the defendant has already served the maximum permissible sentence for that crime ( seePenal Law § 70.15[1] ), the matter must be remitted to the Supreme Court, Queens County, for the imposition of a sentence to time served on the conviction of attempted grand larceny in the fourth degree ( see People v. Seymour, 77 A.D.3d 976, 980, 910 N.Y.S.2d 487;People v. Harvin, 75 A.D.3d 559, 561, 904 N.Y.S.2d 507).
The defendant contends that the Supreme Court erred in denying his challenge for cause to a prospective juror who expressed doubt as to her ability to remain impartial if the defendant chose not to testify at trial. However, upon further inquiry, the prospective juror gave unequivocal assurances that she would follow the court's instructions regarding the presumption of innocence, and that she would not draw any negative inferences from the defendant's failure to testify. Accordingly, the Supreme Court properly denied the defendant's challenge for cause to this prospective juror ( see People v. High, 18 A.D.3d 775, 776, 795 N.Y.S.2d 701;People v. Porter, 7 A.D.3d 817, 776 N.Y.S.2d 890;People v. Narvaez, 298 A.D.2d 603, 603, 749 N.Y.S.2d 56;cf. People v. Bludson, 97 N.Y.2d 644, 645, 736 N.Y.S.2d 289, 761 N.E.2d 1016;People v. Kenner, 8 A.D.3d 296, 297, 777 N.Y.S.2d 669).
The defendant's remaining contention is without merit.