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

2
KA 11-00745
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SASHALEE N. PALLAGI, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CONNORS & VILARDO, LLP, BUFFALO (TERRENCE M. CONNORS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered March 2, 2011. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law and the indictment is dismissed without prejudice
to the People to file any appropriate charge.

     Memorandum: In these two appeals, defendants appeal,
respectively, from judgments convicting them following a single jury
trial of grand larceny in the fourth degree (Penal Law § 155.30 [1]).
The convictions arose from an incident in which defendants, according
to the testimony of a store loss prevention officer presented by the
People, stole numerous items of property by removing the store
security sensors and hangers from the items, and then removing the
items from the store by unknown means. Certain merchandise was
apparently never recovered. Defendants were apprehended as they left
the store, but no merchandise was recovered.

     The People served CPL 710.30 notices of their intent to offer
statements that defendants made to law enforcement officers at the
time of their arrest, although the notices indicated that defendants
made only exculpatory statements. During the trial, however, a
sheriff’s deputy testified that he asked defendant Sashalee N. Pallagi
how defendants arrived at the mall, and she replied that a friend had
given them a ride. Defendants objected, and replied in the
affirmative when County Court asked if they were moving to strike the
testimony. The court denied the motion, however, and the prosecutor
thereafter cross-examined Sashalee on that point. In addition, the
prosecutor argued during summation that the friend was part of the
scheme to steal property.
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     We agree with defendants that the court erred in denying their
motion to strike. Initially, we note that the People failed to
preserve for our review their present contention that defendants’
objection was untimely (see generally People v Hunter, 17 NY3d 725,
727-728; People v Whitley, 68 AD3d 790, 791, lv denied 14 NY3d 807;
People v Garcia, 296 AD2d 509, 510).

     “Whenever the people intend to offer at a trial . . . evidence of
a statement made by a defendant to a public servant, which statement
if involuntarily made would render the evidence thereof suppressible
upon motion pursuant to subdivision three of section 710.20, . . .
they must serve upon the defendant a notice of such intention,
specifying the evidence intended to be offered” (CPL 710.30 [1]). The
People need not provide all statements verbatim, “but they must be
described sufficiently so that the defendant can intelligently
identify them” (People v Lopez, 84 NY2d 425, 428). We conclude that
the notice at issue is insufficient because it failed to provide
defendants “with notice that adequately set out the sum and substance
of [the] statements [presented by the People at trial] and permitted
[defendants] to intelligently identify them” (People v Sturdevant, 74
AD3d 1491, 1492, lv denied 15 NY3d 810; cf. People v Chanowitz, 298
AD2d 767, 768-769, lv denied 99 NY2d 613). Contrary to the People’s
further contention, the statements were not pedigree information
exempt from the notice requirement (cf. People v Rodney, 85 NY2d 289,
293). We therefore reverse the judgments. If this were the only
meritorious argument presented by defendants, we would grant a new
trial on the grand larceny charge of which they were convicted. We
also conclude for the reasons that follow, however, that defendants
are correct that the evidence is legally insufficient to support the
conviction of grand larceny and thus that a new trial on that charge
is not warranted. We therefore reverse the judgment in each appeal
and dismiss the indictments, each of which charged the respective
defendant solely with grand larceny in the fourth degree.
Nevertheless, because we further conclude that the evidence is legally
sufficient to support a conviction of petit larceny, we dismiss the
indictments without prejudice to the People to file any appropriate
lesser charge (see generally People v Holmes, 302 AD2d 936).

     As noted, defendants further contend that the evidence is legally
insufficient to support the conviction. Specifically, they contend
that it is legally insufficient to establish that they stole property,
that they took property from an owner thereof, and that the value of
the stolen property exceeded $1,000. We note at the outset that
defendants failed to preserve for our review their contention that the
evidence is legally insufficient to establish that they took property
“from an owner thereof” (Penal Law § 155.05 [1]; see People v Gray, 86
NY2d 10, 19-20). In any event, viewing the evidence in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), we
conclude that there is legally sufficient evidence establishing that
the store’s loss prevention officer “had a possessory right which,
however limited or contingent, was superior to that of defendant[s]”
(People v Hutchinson, 56 NY2d 868, 869).

     Contrary to defendants’ further contention, there is legally
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sufficient evidence establishing that they stole property. The
essential element of taking with respect to a larceny “is satisfied
where the defendant ‘exercised dominion and control over the property
for a period of time, however temporary, in a manner wholly
inconsistent with the owner’s continued rights’ ” (People v Zombo, 28
AD3d 1233, 1234, lv denied 7 NY3d 794, 797, quoting People v Jennings,
69 NY2d 103, 118). Here, the People presented evidence establishing
that defendants removed hangers and store security sensors from an
unknown number of items and then concealed the items, and that certain
items were removed from the store. Thus, the evidence is legally
sufficient to establish that defendants “exercised control wholly
inconsistent with the owner’s continued rights” (People v Olivo, 52
NY2d 309, 319).

     We agree with defendants, however, that the conviction is not
supported by legally sufficient evidence that the value of the stolen
property exceeded $1,000. 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]). The People therefore were required to establish beyond a
reasonable doubt that the value of the stolen property exceeded
$1,000. “The Court of Appeals has unequivocally held 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 Gonzalez, 221 AD2d 203, 204, quoting People v
Lopez, 79 NY2d 402, 404). “Conclusory statements and rough estimates
of value are not sufficient” (People v Loomis, 56 AD3d 1046, 1047; see
People v Selassie, 166 AD2d 358, 359, lv denied 77 NY2d 911).

     Here, the sole evidence of value consisted of the testimony of a
store loss prevention officer, who indicated that three specific
missing items were valued at $49.99, $128, and $108, respectively, and
that the total value of the property taken was $2,200. In reaching
the latter value, however, the store loss prevention officer inferred
that certain property was taken based on a review of a grainy stop-
action video recording of defendants’ movement in the store, and she
admitted that she could not clearly ascertain the items that were
taken. She also testified that defendants took approximately 20 items
of merchandise into the dressing room area, and that the merchandise
was not recovered. She admitted, however, that approximately 20 items
were found in the dressing room area, and the People failed to
establish that those items were not some of those allegedly taken by
defendants. Furthermore, the store loss prevention officer assigned a
minimum value to the items that she concluded were taken, based merely
upon her estimate of the minimum sale price of some of the items in
that area of the store. No further evidence was introduced with
respect to the value of any item, or with respect to the basis for her
estimated minimum sale price. “Consequently, we cannot on this record
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 $1,000” (People v Brink, 78 AD3d 1483, 1484,
lv denied 16 NY3d 742, rearg denied 16 NY3d 828). We therefore
conclude that the evidence is legally insufficient to establish that
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                                                         KA 11-00745

the value of the property taken exceeded $1,000. The evidence is
legally sufficient, however, to establish that defendants committed
the lesser included offense of petit larceny. Moreover, viewing the
evidence in light of the elements of the crime of petit larceny (see
People v Danielson, 9 NY3d 342, 349), we conclude that a verdict
convicting defendants of that crime would not be against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Absent the CPL 710.30 violation, we would modify the judgments by
reducing the convictions to that crime (see e.g. Brink, 78 AD3d at
1484). Inasmuch as the proper remedy for the CPL 710.30 violation is
a new trial, however, we dismiss the indictments without prejudice to
the People to file any appropriate charge.

     In light of our determination, we do not address defendants’
contentions with respect to the sentences imposed.

     All concur except SCUDDER, P.J., who dissents and votes to modify
in accordance with the following Memorandum: I respectfully dissent
and would modify the respective judgments in each appeal by reducing
the convictions of grand larceny in the fourth degree (Penal Law §
155.30 [1]) to petit larceny (§ 155.25; see CPL 470.15 [2] [a]), and I
would remit the matters to County Court for resentencing (see CPL
470.20 [4]).

     I disagree with the majority that the court erred in refusing to
strike the testimony that Sashalee N. Pallagi, the defendant in appeal
No. 1, stated that a friend drove the two defendants to the mall.
Rather, in my view, the CPL 710.30 notices adequately set out the sum
and substance of defendants’ statements and permitted them to identify
those statements, which were essentially denials that they removed
sensors from clothing or knew anything about the missing property (see
People v Sturdevant, 74 AD3d 1491, 1492, lv denied 15 NY3d 810).
Although the notice does not contain the statement that defendants now
contend was inculpatory, “[t]he statutory notice does not require a
verbatim recitation of an oral statement” (People v Cooper, 158 AD2d
743, 744, revd on other grounds 78 NY2d 476). Furthermore, the
“purpose of the notice requirement is to enable defendant[s] to
challenge the voluntariness of [their] statement[s] before trial . .
., [and thus] defendant[s] waived [their] objection to the adequacy of
the notice by making [their respective] suppression motion[s]”
(Sturdevant, 74 AD3d at 1492). The fact that defendants ultimately
withdrew their request for a Huntley hearing is of no moment. The CPL
710.30 notice served its purpose, i.e., it provided defendants with
the opportunity to challenge the voluntariness of their respective
statements. Even assuming, arguendo, that the statement in question
is inculpatory, I conclude that it is not thereby rendered
involuntary. Indeed, in my view, there is no basis for concluding
that the court would have suppressed the statement as involuntary even
in the event that the Huntley hearing had been conducted. Thus, I
conclude that the court did not commit reversible error by refusing to
strike the testimony on the ground that defendants did not have notice
of the statement.

     I agree with the majority that the evidence is legally
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insufficient to support the conviction of grand larceny in the fourth
degree in each appeal. Thus, as noted, I would therefore modify the
judgments by reducing the convictions to petit larceny (see CPL 470.15
[2] [a]), and I would remit the matters to County Court for
resentencing (see CPL 470.20 [4]).

     I submit, however, that the majority may not determine that the
evidence supports a lesser included offense but then fail to modify
the judgments by reducing the convictions to that lesser included
offense (see CPL 470.15 [2] [a]). The rationale set forth by the
majority for failing to do so is that the majority has determined that
there is a trial error. As I previously set forth, I do not agree
with the majority that there was a trial error. Nevertheless, for the
reasons that follow, I submit that, if there also had been a trial
error, the appropriate remedy would be to grant a new trial on the
indicted charges. Indeed, in the event that a defendant raises
meritorious contentions of both legal insufficiency and trial error,
the corrective actions that a court is permitted by statute to
implement may conflict, as is the case with the majority’s analysis.
Specifically, the majority has determined both that the evidence is
legally sufficient to support the lesser included offense of petit
larceny, which requires modification of the judgments to convictions
of petit larceny and remittal for resentencing on those convictions
(see CPL 470.15 [2] [a]; 470.20 [4]), while at the same time there is
a trial error, which requires reversal of the judgments and remittal
for a new trial (see CPL 470.20 [1]). The conundrum faced by the
majority, however, is that we may not both modify a judgment by
reducing the conviction to a lesser included offense (see CPL 470.20
[2] [a]), and simultaneously grant defendant a new trial (see CPL
470.20 [1]). Based upon the Court of Appeals’ implicit holding in
People v Wright (17 NY3d 643, revg 63 AD3d 1700), I submit that, if
there is a trial error that deprived defendant of a fair trial, the
error deprives this Court of the authority to review a further
contention that the conviction is not based upon legally sufficient
evidence and to reduce the conviction to a lesser included offense.
Instead, the judgment must be reversed and a new trial granted on the
indictment, without regard to the legal sufficiency of the evidence.

     In Wright, the Court of Appeals reversed our order in which we
had, inter alia, modified a judgment convicting defendant of murder in
the second degree (Penal Law § 125.25 [2] [depraved indifference
murder]) by reducing the conviction to the lesser included offense of
manslaughter in the second degree (§ 125.15 [1]). On appeal from our
order, the Court of Appeals determined that the trial court had erred
in prohibiting defendant from introducing certain testimony, and the
Court of Appeals remitted the matter to Supreme Court “for a new
trial” (id. at 656). Inasmuch as the accusatory instrument charged
defendant with murder, and not manslaughter, it is implicit in the
decision of the Court of Appeals that the new trial was to be held on
the indicted count of murder in the second degree. Had the Court
intended that the trial be held on the reduced conviction of
manslaughter, it necessarily would have granted the People leave to
re-present the charges to another grand jury in order to obtain an
accusatory instrument upon which to try defendant (see People v
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Gonzalez, 61 NY2d 633). Thus, I further submit that it is also
implicit in the Court’s decision that the trial error deprived this
Court of the authority to review the legal sufficiency of the
evidence, inasmuch as this Court’s conviction of the lesser included
offense was overturned. In my view, where there is a trial error that
denies defendant a fair trial, the corrective action that may properly
be taken is to reverse the judgment and grant a new trial (see CPL
470.20 [1]). Here, because the majority has determined that there is
a trial error, the judgments must be reversed and a new trial must be
granted on the indicted counts of grand larceny (see Wright, 17 NY3d
at 655-656).

     Finally, in my view, the majority’s resolution of this matter
violates the double jeopardy rights of defendants (see US Const 5th
Amend; NY Const, art I, § 6; CPL 40.20). Although double jeopardy
would not be implicated if there were an offense with which to charge
defendants that was not a lesser included offense (see e.g. Matter of
Suarez v Byrne, 10 NY3d 523, 538, rearg denied 11 NY3d 753; People v
Gilmore, 41 AD3d 1162, lv denied 9 NY3d 875), upon this record, the
only charge available to the People is petit larceny. That is, of
course, a lesser included offense of grand larceny because “ ‘the
lesser offense . . . requires no proof beyond that which is required
for conviction of the greater’ ” (People v Biggs, 1 NY3d 225, 230),
and thus the People would be precluded from charging defendants again
with respect to the theft of property for which they have previously
been tried.




Entered:   January 31, 2012                     Frances E. Cafarell
                                                Clerk of the Court
