Opinion
April 5, 1985
Appeal from the Orleans County Court, Miles, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell, and Schnepp, JJ.
Judgment unanimously modified, on the law, by reducing the conviction of criminal possession of stolen property in the second degree to criminal possession of stolen property in the third degree and vacating the sentence imposed thereon, and, as modified, affirmed. Memorandum: On appeal from a judgment of conviction for criminal possession of stolen property in the second degree (Penal Law § 165.45), defendant argues that there was insufficient proof of value greater than $250 to sustain the conviction. We agree. Defendant was charged with illegal possession of two chain saws stolen from complainant's barn. There was no evidence submitted with regard to the market value of the saws at the time of the crime. The manager of a department store estimated that the replacement value of one saw ranged between $200 and $300 depending upon whether the blade was 14 inches or 16 inches long, and the replacement value of the other saw ranged between $400 and $600 depending upon whether the blade was 16 inches or 18 inches long. The witness conceded that he was not an expert in this particular field, that he had not examined either saw, and that he could not determine the value by looking at them in any event. On this record, the People failed to establish beyond a reasonable doubt that the value of the stolen property exceeded $250, a necessary prerequisite for conviction of criminal possession of stolen property in the second degree ( see, Penal Law § 165.45; People v. McKoy, 79 A.D.2d 665; People v. Riddick, 69 A.D.2d 826). Although the conviction cannot stand, the evidence did establish the crime of criminal possession of stolen property in the third degree ( see, Penal Law § 165.40). There is no need to remit for resentence since defendant has already served the maximum time to which he could be sentenced on the conviction of criminal possession of stolen property in the third degree ( see, Penal Law § 70.15; People v. McKoy, supra; People v. Riddick, supra).