Opinion
864 KA 16-01157
12-23-2020
The PEOPLE of the State of New York, Respondent, v. Douglas GRANT, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JAMES M. SPECYAL OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of grand larceny in the fourth degree ( Penal Law § 155.30 [1] ). We affirm.
Defendant's contention that the evidence is legally insufficient to establish the value of the gold and silver bullion coins that he allegedly stole is not preserved for our review (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. McClusky , 12 A.D.3d 1174, 1175, 784 N.Y.S.2d 425 [4th Dept. 2004], lv denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141 [2005] ). We further reject defendant's contention that defense counsel was ineffective for failing to preserve that contention because it had little or no chance of success (see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Sampson , 184 A.D.3d 1123, 1125, 125 N.Y.S.3d 808 [4th Dept. 2020], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 290, 155 N.E.3d 783 [2020] ).
Additionally, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Lostumbo , 182 A.D.3d 1007, 1008, 123 N.Y.S.3d 319 [4th Dept. 2020], lv denied 35 N.Y.3d 1046, 127 N.Y.S.3d 821, 151 N.E.3d 502 [2020] ). Here, although a different verdict would not have been unreasonable, on this record we cannot conclude that the jury " ‘failed to give the evidence the weight it should be accorded’ " ( People v. Ray , 159 A.D.3d 1429, 1430, 73 N.Y.S.3d 325 [4th Dept. 2018], lv denied 31 N.Y.3d 1086, 79 N.Y.S.3d 107, 103 N.E.3d 1254 [2018] ; see People v. Edwards , 159 A.D.3d 1425, 1426, 73 N.Y.S.3d 323 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ). Specifically, there was ample evidence at trial for the jury to reasonably conclude that defendant stole the coins from the victim. The testimony established that defendant had a key to the victim's home and knew where the stolen coins were kept, and the victim testified that the coins were missing from her home. There was also testimony from the proprietor and employees of a pawn shop that defendant sold coins similar to those belonging to the victim to the pawn shop. A police officer testified that defendant admitted that he sold coins to the pawn shop and, although defendant told the officer that the coins had been given to him by his mother, defendant's sister testified that their mother did not have a coin collection, which undercut his explanation of the coins' provenance.
Defendant also contends that the jury's verdict with respect to the value of the stolen coins is against the weight of the evidence. We reject that contention. Grand larceny in the fourth degree requires that the value of the stolen property exceed $1,000 (see Penal Law § 155.30 [1] ). The element of value is defined as the "market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime" (§ 155.20 [1]; see People v. Sheehy , 274 A.D.2d 844, 845, 711 N.Y.S.2d 856 [3d Dept. 2000], lv denied 95 N.Y.2d 938, 721 N.Y.S.2d 615, 744 N.E.2d 151 [2000] ). The People were not required to provide expert testimony establishing the value of the stolen property and, here, the People established the value of the coins by providing the testimony of a lay witness who had knowledge of and familiarity with the coins and their value (see Sheehy , 274 A.D.2d at 845, 711 N.Y.S.2d 856 ; People v. Joy , 107 A.D.2d 938, 938, 484 N.Y.S.2d 351 [3d Dept. 1985] ; cf. People v. Cruz , 130 A.D.3d 1538, 1539, 13 N.Y.S.3d 758 [4th Dept. 2015], lv denied 26 N.Y.3d 1008, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ). The relevant witness testimony about the value of the coins was neither conclusory nor a "rough estimate[ ]" ( People v. Loomis , 56 A.D.3d 1046, 1047, 867 N.Y.S.2d 772 [3d Dept. 2008] ).
Defendant's contention that the prosecutor's comments on summation constructively amended the indictment and thereby improperly changed the theory of the prosecution is not preserved for our review (see People v. Cullen , 110 A.D.3d 1474, 1475, 972 N.Y.S.2d 792 [4th Dept. 2013], affd 24 N.Y.3d 1014, 997 N.Y.S.2d 348, 21 N.E.3d 1009 [2014] ; People v. Rivera , 133 A.D.3d 1255, 1256, 18 N.Y.S.3d 813 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ; People v. Osborne , 63 A.D.3d 1707, 1708, 880 N.Y.S.2d 835 [4th Dept. 2009], lv denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009] ), and we decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Finally, we conclude that County Court's finding with respect to the amount of restitution is supported by the requisite preponderance of the evidence presented at the restitution hearing (see CPL 400.30 [4] ). The court properly determined the value of the stolen coins based on, inter alia, estimates from the two largest coin retailers in the nation, and the parties' stipulation to determine the value of the coins by using the cost of replacement on a specific date (see generally People v. Jones , 155 A.D.3d 1111, 1115, 63 N.Y.S.3d 749 [3d Dept. 2017], lv denied 31 N.Y.3d 984, 77 N.Y.S.3d 662, 102 N.E.3d 439 [2018] ; People v. Davis , 114 A.D.3d 1287, 1288, 980 N.Y.S.2d 179 [4th Dept. 2014] ).