Opinion
January 21, 1992
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, counts 38, 39, and 41 of the indictment, under which the defendant was convicted of grand larceny in the second degree, are dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Beslanovics, 57 N.Y.2d 726), and a new trial is ordered on the remaining counts.
Reversal is mandated on the ground that the trial court, sua sponte, and over the defendant's objection, submitted a copy of the indictment to the jury (see, People v. Kelly, 76 N.Y.2d 1013, 1014; People v. Taylor, 76 N.Y.2d 873, 874; People v. Nimmons, 72 N.Y.2d 830; People v. Sanders, 70 N.Y.2d 837; People v. Brooks, 70 N.Y.2d 896; People v. Owens, 69 N.Y.2d 585; People v. Sotomayer, 173 A.D.2d 500; People v. George, 162 A.D.2d 705). Unlike People v Moore ( 71 N.Y.2d 684), the jury here did not seek any such information and the submission therefore cannot be justified on the basis of any statutory obligation to comply with a jury request (see, CPL 310.30; see, People v. Moore, supra, at 686; People v. Lourido, 70 N.Y.2d 428).
Although the defendant's contention that the evidence presented by three of the complaining witnesses as to counts 38, 39, and 41 of the indictment, charging grand larceny in the second degree, was legally insufficient to prove the value of the stolen property exceeded $1,500 has not been preserved for appellate review (CPL 470.05), we reach this issue in the exercise of our interest of justice jurisdiction. A review of the record reveals that the evidence with respect to counts 38, 39, and 41 was insufficient to comply with the statutory requisite that "the value of the [stolen] property exceeds one thousand five hundred dollars" (Penal Law former § 155.35). Accordingly, we dismiss counts 38, 39 and 41, without prejudice to the People to re-present any lesser appropriate charges to another Grand Jury (see, People v. Beslanovics, supra). Thompson, J.P., Bracken, Harwood and Copertino, JJ., concur.