Opinion
February 23, 1967
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Judgment of conviction unanimously modified on the law and the facts by reducing the degree of the crime of which appellant is convicted under the second count of the indictment, grand larceny first degree, to grand larceny second degree; and by imposing sentence therefor of not less than 2 1/2 nor more than 5 years at Attica State Prison, such sentence to be served concurrently with the sentence imposed under the first count of the indictment and as thus modified judgment affirmed. Memorandum: The defendant with his codefendant was tried on a charge of burglarizing a store in Buffalo, New York, and stealing therefrom articles worth more than $500. They were both convicted of burglary third degree and grand larceny first degree and sentenced as second felony offenders to Attica State Prison for terms of 5 to 10 years on each count, the sentences to run concurrently. Ample evidence was adduced on the trial to establish all the elements of the crimes charged except as to the value of property taken. The evidence did not prove beyond a reasonable doubt a value in excess of $500, although it clearly established a value in excess of $100, thereby constituting grand larceny second degree. This court may reduce the sentence imposed on the defendant as a second felony offender to one appropriate to the conviction as modified in accordance with section 543 of the Code of Criminal Procedure (see People v. May, 9 A.D.2d 508; People v. Kay, 17 A.D.2d 773).