Opinion
2001-09016.
Decided May 10, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered October 10, 2001, convicting him of arson in the third degree and criminal mischief in the second degree, after a nonjury trial, and imposing sentence.
Laura R. Johnson, New York, N.Y. (Beth S. Lyons of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Kristen Marcelle of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, SONDRA MILLER, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by reducing the conviction of criminal mischief in the second degree to criminal mischief in the fourth degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.
The defendant correctly contends that the People failed to prove his guilt of criminal mischief in the second degree beyond a reasonable doubt. The evidence adduced at trial was legally insufficient to establish that the damage to the property exceeded the sum of $1,500 ( see Penal Law § 145.10). No expert testified as to value of the damaged property and no documentary proof as to the cost of repair or replacement was introduced. The complainant's testimony alone that the repair and the replacement of the damaged property cost more than $1,500 was insufficient ( see People v. Wilson, 284 A.D.2d 420; People v. Jackson, 168 A.D.2d 633; People v. Gina, 137 A.D.2d 555).
Accordingly, we reduce the defendant's conviction of criminal mischief in the second degree to criminal mischief in the fourth degree ( see Penal Law § 145.00). However, the matter need not be remitted for resentencing on that count since the defendant has already served the maximum permissible sentence for that crime ( see Penal Law § 70.15; People v. Wilson, supra; People v. Jackson, supra).
The sentence imposed for the defendant's conviction of arson in the third degree was not excessive ( see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions either are academic in light of our determination, unpreserved for appellate review, or without merit.
SANTUCCI, J.P., ALTMAN, S. MILLER and GOLDSTEIN, JJ., concur.