Opinion
08134/02.
Decided March 12, 2008.
The People: ADA Paul Ryan, Defendant: Lawrence K Feitell, Esq.
Defendant moves, pursuant to CPL § 330.30, to set aside a verdict rendered before this court on December 17, 2003, convicting her, after trial by jury, of Grand Larceny in the Fourth Degree (PL § 155.30) and Criminal Possession of Stolen Property in the Fourth Degree (PL § 165.45). Defendant is currently incarcerated, pending sentence, pursuant to said judgment.
Though not specified in defendant's moving papers the court deems the motion to be made pursuant to CPL 330.30[1] as subsections [2] and [3], addressing juror misconduct and newly discovered evidence are plainly inapplicable.
The defendant raises, inter alia, the following grounds in support of the motion: insufficiency of the evidence with respect to her actions in the subject department store, the People's failure to establish the value of the stolen merchandise and ineffective assistance of counsel. For the reasons set forth below the motion is denied in its entirety.
With respect to the sufficiency of the evidence, defendant argues that the Sak's Fifth Avenue surveillance tape which was introduced into evidence failed to demonstrate "continuity of observation" of defendant and co-defendant Larissa Artemevia as well as of the garments in question. The crux of this claim is that the videotape does not conclusively establish that the defendants were acting in concert or that the garments ultimately recovered from Artemevia were the same as those moved about the sales floor by this defendant and depicted on the videotape.
A verdict may be set aside pursuant to CPL § 330.30(1) only on a "ground appearing in the record which, if raised upon appeal from a prospective conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." A conviction may, therefore, be set aside if the evidence is not legally sufficient as a matter of law, People v Colon (65 NY2d 888,[1985]), but a trial court deciding such a motion may not consider the weight or quality of the evidence ( People v Carter, 63 NY2d 530, [1984]; People v Garcia, 272 AD2d 189 [1st Dept 2000]). The evidence must be viewed in the light most favorable to the People ( People v Malizia, 62 NY2d 755; People v Johnson, 220 AD2d 294 [1st Dept 1995]).
Applying these standards it is apparent that defendant's arguments address the weight, not the sufficiency, of the evidence, and further, that the trial evidence was legally sufficient to establish defendant's guilt. Although the store surveillance cameras did not capture defendant's every move, the videotape depicted the path of both defendants crossing on numerous occasions and a pattern of conduct by which the jury could reasonably infer that the defendant's were acting together to steal clothing from the store.
In addition to the videotape, Police Officer Madeline McTague testified about the defendants' interactions with each other, following their arrest, which included communicating in a foreign language from which the jury could reasonably infer that the defendants were together. In light of all the evidence, the jury acted rationally in finding defendant guilty of the charges ( see, People v Bleakely, 69 NY2d 490).
Defendant next avers, incorrectly, that the People failed to offer sufficient evidence that the value of the stolen property exceeded $1,000.00 (one thousand dollars), an essential element of both Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fourth Degree. Defendant's assertion that the People must prove wholesale value or the actual cost of the garments to the store is contrary to case law as well as the pattern jury instructions which merely require proof of market or retail value ( People v Irrizari, 5 NY2d 142; People v Medina 111 AD2d 653 [1st Dept 1985]; CJI 2D [NY] PL § 155.30 and § 165.45).
Here, testimony was elicited from store Detectives Mercado and Trinidad who testified that, on the date of the theft, the Yves Saint Laurent slacks retailed for $895.00 and the Yamomoto coat for $780.00. Defendant's contention that value must be established by the testimony of an "in house buyer" or some other employee with specialized knowledge of the merchandise is inaccurate ( see, People v Solomon, 124 AD2d 840 [2nd Dept 1986]). (Jewelry store clerk competent to testify to value of stolen gold chains as reflected on price tag).
While the source of Mercado's knowledge of the retail prices was never established, Trinidad testified that his knowledge was determined from a document he referred to as a "suspended transaction receipt" which was generated by the store.
The court next addresses defendant's claims of ineffective assistance of counsel in which she contends that: she was prejudiced by attorney Robert Race's brief simultaneous representation of herself and co-defendant; that Mr. Race was briefly suspended from the practice of law while representing her; and that her trial counsel, Raymond Grunewald erroneously advised her not to plead guilty to the offered misdemeanor misrepresenting that, even if convicted after trial, she would not be subjected to deportation.
At the outset, the court notes that defendant's claims are not cognizable pursuant to CPL § 330.30 as defendant relies exclusively on allegations outside of the record, namely her current attorney's affirmation and her own affidavit appended to the moving papers ( see, e.g. People v Perry, 266 AD2d 151 [1st Dept 1999]). (Defendant's motion to set aside verdict alleging counsel deprived him of right to testify before grand jury was procedurally defective as supporting allegations not on record).
Notwithstanding the above procedural bar, the alleged deficiencies of counsel, even if accepted as true, do not rise to the level of ineffective assistance. To sustain a claim of ineffectiveness a defendant must demonstrate both that counsel's performance was deficient and that such deficiencies caused actual prejudice, that is, that but for counsel's errors, there was a reasonable probability that the result of the proceeding would have been different ( Strickland v Washington, 466 US 668).
The record here indicates that Mr. Race's brief period of joint representation and suspension resulted in no prejudice to either defendant. Upon information and belief, Mr. Race was suspended from on or about July 5, 2000 to on or about November 19, 2002. Defendants were arrested on September 21, 2002. Thus, during the pendency of the case, the suspension was in effect for only a two month period, during which time Mr. Race appeared in court on behalf of both defendant's on, at most, two pre-indictment occasions.
On December 19, 2002, the suspension had been lifted and Mr. Race appeared for both defendants. Far from prejudicing the defendants, counsel procured highly favorable misdemeanor plea offers which were conditioned upon both defendants accepting the disposition. While co-defendant was amenable to the opportunity to plead to a presumably non-deportable misdemeanor, this defendant consistently refused any disposition choosing instead to proceed to trial.
The indictment was filed on December 27, 2002. The defendants were arraigned on the indictment in Part 70 on January 14, 2002 at which time Raymond B. Grunewald, Esq, filed a notice of appearance on behalf of this defendant and Mr. Race continued to represent co-defendant Artemevia.
In any event, absent any assertions to the contrary, the court can only conclude that the decision to have Mr. Race represent both defendant's was a conscious choice on the part of the defendants and that they were appropriately advised of the potential conflict of interest ( see, People v Salcedo, 68 NY2d 130).
Defendant also fails to demonstrate that but for Mr. Grunewald's alleged inaccurate immigration advice there is a reasonable probability that she would have accepted the misdemeanor plea ( see, People v McDonald , 1 NY3d 109 ). People v McDonald, though relied upon by defendant, is readily distinguishable as it involved the converse situation of a defendant who plead guilty to a deportable offense without being advised of the immigration consequences. Here, defendant, who was charged as an accomplice, chose to assert her innocence and proceed to trial with all the attendant risks. In any event, failure to advise a client of potential immigration consequences of a conviction, standing alone does not constitute ineffective assistance of counsel ( People v Ford, 86 NY2d 397).
The court has considered defendant's remaining arguments and finds them to be baseless. Accordingly the motion is denied.
This constitutes the Decision and Order of the court.