Opinion
KA 99-05463
February 1, 2002.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered March 26, 1999, convicting defendant after a nonjury trial of, inter alia, criminal mischief in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a bench trial of criminal trespass in the second degree (Penal Law § 140.15), criminal mischief in the second degree (Penal Law § 145.10) and resisting arrest (Penal Law § 205.30). Defendant was sentenced as a second felony offender to concurrent terms of incarceration, the greatest of which is 3½ to 7 years. Defendant contends that the evidence is legally insufficient to support the conviction of criminal mischief because the People failed to establish that the victim sustained damages in excess of $1,500. We agree with defendant that Supreme Court erred in admitting receipts and an insurance check payable to the victim in evidence in the absence of a proper foundation for those business records ( see, People v. Michallow, 201 A.D.2d 915, 916-917, lv denied 83 N.Y.2d 874). We conclude, however, that the error is harmless. Contrary to defendant's contention, the testimony of the victim established that the cost of repairing her property exceeded $1,500 ( see, People v. Brown, 177 A.D.2d 942, lv denied 79 N.Y.2d 944 ; see also, People v. Woodard, 148 A.D.2d 997, 997-998, lv denied 74 N.Y.2d 749; cf., People v. Hoppe, 184 A.D.2d 582). The sentence is neither unduly harsh nor severe.