Opinion
2014-03-6
The PEOPLE of the State of New York, Respondent, v. Amanda M. CARD, Appellant.
David M. Kaplan, Penfield, for appellant. Weeden A. Wetmore, District Attorney, Elmira (John M. Tuppen of counsel), for respondent.
David M. Kaplan, Penfield, for appellant. Weeden A. Wetmore, District Attorney, Elmira (John M. Tuppen of counsel), for respondent.
Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.
ROSE, J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered September 30, 2011, upon a verdict convicting defendant of the crime of grand larceny in the third degree.
Defendant was employed as a housekeeper at an assisted living facility where she was accused of stealing jewelry from an elderly resident. She was convicted of grand larceny in the third degree and sentenced to a prison term of 2 1/3 to 7 years. She now appeals.
The weight of the evidence supports the verdict. Although the victim died prior to trial, her son identified photographs of the jewelry that he had placed in a lockbox for his mother and testified that, while she was in the hospital, he discoveredthe lockbox missing from its usual place in his mother's dresser in her apartment at the facility. Defendant had access to the victim's apartment, and a friend who helped defendant sell the jewelry testified that defendant described finding the jewelry in a small safe in a dresser belonging to a resident of the facility. Two other friends of defendant testified, one regarding defendant's admissions that she stole jewelry from an elderly woman at the facility and another describing defendant's suspicious conduct while trying to sell the jewelry. The credibility of these prosecution witnesses was fully explored at trial. A jeweler also identified a photograph of a watch stolen from the victim as one he had purchased from defendant.
As part of our review of the weight of the evidence, we conclude that the People's expert jewelry appraiser provided testimony that permitted the jury to reasonably infer that the value of the stolen jewelry was more than $3,000 ( seePenal Law § 155.35; People v. Royster, 107 A.D.3d 1298, 1300–1301, 967 N.Y.S.2d 533 [2013],lv. denied22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554 [2013];People v. Szyzskowski, 89 A.D.3d 1501, 1502, 933 N.Y.S.2d 497 [2011];People v. Hardy, 57 A.D.3d 1100, 1102, 868 N.Y.S.2d 829 [2008],lv. denied12 N.Y.3d 784, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009] ). The expert was familiar with the jewelry, inasmuch as she had earlier appraised it for insurance purposes and had sold some of the pieces to the victim. Based on photographs of the jewelry, her prior appraisals and her experience, the expert was able to assign a fair market value of over $11,000 to the stolen pieces at the time of their theft. The expert also opined that, based on her personal knowledge, the victim took good care of the jewelry, and wear and tear was to be expected, but that would not significantly affect its value.
Based on the foregoing, we cannot agree that defense counsel's failure to make a specific motion for a trial order of dismissal on the ground that the evidence of the value of the stolen jewelry was insufficient rises to the level of ineffective assistance, inasmuch as such a motion had “ ‘little or no chance of success' ” ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004] ). Nor did counsel's failure to call an opposing expert appraiser amount to ineffective assistance where, as here, counsel vigorously cross-examined the People's expert in an attempt to undercut her testimony regarding the value of the jewelry ( see People v. Auleta, 82 A.D.3d 1417, 1419–1420, 919 N.Y.S.2d 222 [2011],lv. denied17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011];People v. Demetsenare, 14 A.D.3d 792, 794, 787 N.Y.S.2d 515 [2005] ). In any event, defendant has not demonstrated that there was an available expert appraiser with similar qualifications who would have provided beneficial testimony to the defense ( see People v. Demetsenare, 14 A.D.3d at 794, 787 N.Y.S.2d 515;People v. Prince, 5 A.D.3d 1098, 1098, 773 N.Y.S.2d 325 [2004],lv. denied2 N.Y.3d 804, 781 N.Y.S.2d 304, 814 N.E.2d 476 [2004] ).
Finally, we are unpersuaded by defendant's claim that the sentence was harsh and excessive. Given defendant's extensive criminal history, her lack of remorse and her violation of trust by victimizing a vulnerable elderly person, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence ( see People v. Alnutt, 101 A.D.3d 1461, 1466, 957 N.Y.S.2d 412 [2012],lv. denied21 N.Y.3d 941, 968 N.Y.S.2d 3, 990 N.E.2d 137 [2013],cert. denied––– U.S. ––––, 134 S.Ct. 1035, ––– L.Ed.2d –––– [2014]; People v. Arquette, 281 A.D.2d 652, 652, 720 N.Y.S.2d 852 [2001];People v. Shea, 254 A.D.2d 512, 513, 679 N.Y.S.2d 428 [1998] ).
ORDERED that the judgment is affirmed. PETERS, P.J., STEIN and EGAN JR., JJ., concur.