        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

51
KA 14-00726
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN J. SLACK, ALSO KNOWN AS JOHN SLACK, ALSO
KNOWN AS JONATHAN J. SLACK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered April 9, 2014. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the conviction to petit larceny and
vacating the sentence, and as modified the judgment is affirmed and
the matter is remitted to Genesee County Court for further proceedings
in accordance with the following memorandum: Defendant appeals from a
judgment convicting him upon a jury verdict of grand larceny in the
third degree (Penal Law § 155.35). Defendant failed to preserve for
our review his contention that the conviction is not supported by
legally sufficient evidence inasmuch as he moved for a trial order of
dismissal on a ground different from that raised on appeal (see People
v Gray, 86 NY2d 10, 19). We nevertheless exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]), and we agree with defendant that there is
insufficient evidence that the value of the stolen property exceeded
$3,000. The value of stolen property is “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” (Penal Law § 155.20 [1]).
It is well settled that “a victim must provide a basis of knowledge
for his [or her] statement of value before it can be accepted as
legally sufficient evidence of such value” (People v Lopez, 79 NY2d
402, 404). Furthermore, “[c]onclusory statements and rough estimates
of value are not sufficient” to establish the value of the property
(People v Loomis, 56 AD3d 1046, 1047; see People v Walker, 119 AD3d
1402, 1402-1403; People v Pallagi, 91 AD3d 1266, 1269). “Although a
‘victim is competent to supply evidence of original cost’ . . . ,
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                                                         KA 14-00726

‘evidence of the original purchase price, without more, will not
satisfy the People’s burden’ ” (People v Geroyianis, 96 AD3d 1641,
1644, lv denied 19 NY3d 996, reconsideration denied 19 NY3d 1102).

     Here, the victim testified that several specific items were
taken, but the only evidence of the value of those items was the
victim’s testimony regarding the purchase price of some of them, and
her hearsay testimony regarding a purported expert’s appraisal of some
of the property, which was based solely on her description of certain
jewelry to the purported expert. Based on the evidence of value in
the record, we cannot conclude “that the jury ha[d] a reasonable basis
for inferring, rather than speculating, that the value of the property
exceeded the statutory threshold” of $3,000 (People v Sheehy, 274 AD2d
844, 845, lv denied 95 NY2d 938; cf. People v Pepson, 61 AD3d 1399,
1400, lv denied 12 NY3d 919). We therefore conclude that the evidence
is legally insufficient to establish that the value of the property
taken exceeded $3,000 (see People v Echlin, 188 AD2d 1042, 1042, lv
denied 81 NY2d 885; see also People v Quigley, 70 AD3d 1411, 1412).
The evidence is legally sufficient, however, to establish that
defendant committed the lesser included offense of petit larceny (see
Penal Law § 155.25), “ ‘which requires no proof of value’ ” (Quigley,
70 AD3d at 1412). We therefore modify the judgment by reducing the
conviction to that crime and by vacating the sentence, and we remit
the matter to County Court for sentencing on the conviction of petit
larceny (see CPL 470.15 [2] [a]).

     Defendant’s contention that the court erred in imposing
restitution without conducting a hearing is moot, inasmuch as we have
vacated the sentence. We note, however, that we agree with defendant
that “the record ‘does not contain sufficient evidence to establish
the amount [of restitution to be imposed]’ ” (People v Lawson [appeal
No. 7], 124 AD3d 1249, 1250). Therefore, in view of the fact that we
are remitting for sentencing, we further direct that, if the court
determines upon remittal that the sentence should include restitution,
the court must conduct a hearing to ascertain the amount of
restitution, if any, to be imposed.

     Defendant further contends that he was denied effective
assistance of counsel based on defense counsel’s failure to challenge
a prospective juror for cause or to exercise a peremptory challenge
with respect to that prospective juror. We reject that contention.
It is well settled that “ ‘it is incumbent on defendant to demonstrate
the absence of strategic or other legitimate explanations’ for
counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712,
quoting People v Rivera, 71 NY2d 705, 709), and here, defendant
“failed to show the absence of a strategic explanation” for defense
counsel’s decision not to challenge that prospective juror (People v
Irvin, 111 AD3d 1294, 1296, lv denied 24 NY3d 1044, reconsideration
denied 26 NY3d 930 [internal quotation marks omitted]; see People v
Boykins, 134 AD3d 1542, 1542).

     The record is insufficient to enable us to review defendant’s
contention that the court failed to respond appropriately to a jury
communication (see generally People v Kinchen, 60 NY2d 772, 773-774),
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                                                         KA 14-00726

and thus the proper procedural vehicle for raising that contention is
by way of a motion pursuant to CPL article 440. Finally, defendant’s
contentions regarding the severity of the sentence are moot in light
of our determination.




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
