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

1087
KA 10-01635
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD J. SZYSZKOWSKI, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (JOHN C. LUZIER
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered July 26, 2010. The judgment convicted
defendant, upon a jury verdict, of driving while intoxicated, a class
D felony, criminal possession of stolen property in the fourth degree,
unlawful operation of ATV on highway and operation of ATV without
helmet.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Cattaraugus County
Court for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant was convicted following a jury trial of,
inter alia, felony driving while intoxicated (Vehicle and Traffic Law
§ 1192 [3]; § 1193 [1] [c] [ii]) and criminal possession of stolen
property in the fourth degree (Penal Law § 165.45 [1]). Defendant
does not dispute that he was intoxicated when he was arrested or that
the all-terrain vehicle (ATV) in question was stolen. He contends,
however, that the evidence is legally insufficient to establish that
he operated or possessed the ATV. We reject that contention. The
circumstantial evidence presented by the People established that
defendant was the person observed by the arresting police officer
operating an ATV without a helmet shortly before defendant was
arrested. The officer observed that the operator of the ATV wore a
black hooded jacket and black pants, and that he had mud splattered on
his clothing. Although the officer was unable to catch up to the ATV
to effectuate a stop, he observed an ATV parked in the driveway of a
house on a street in the area where the ATV was last seen. The ATV in
the driveway was identical to the one previously observed by the
officer, and its engine was warm to the touch. The resident of the
house was a friend of defendant and indicated that defendant had
arrived only moments before the officer did. She also informed the
officer that she had no idea how the ATV arrived in her driveway but
                                 -2-                          1087
                                                         KA 10-01635

that she heard a noise that sounded like an ATV moments before
defendant arrived. In addition, when he emerged from the house at the
officer’s request, defendant was wearing a black hooded jacket and
black pants, and he had mud splattered on his back. Finally,
defendant lied to the officer concerning several matters and refused
to provide his correct name and date of birth. Viewing the evidence
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), we conclude that there is a “ ‘valid line of reasoning
and permissible inferences [that] could lead a rational person’ ” to
conclude that defendant operated and thereby possessed the ATV (People
v Hines, 97 NY2d 56, 62, rearg denied 97 NY2d 678).

     We also reject defendant’s contention that the evidence is
legally insufficient to establish that the value of the ATV exceeded
$1,000, an element of criminal possession of stolen property in the
fourth degree (see Penal Law § 165.45). Pursuant to Penal Law §
155.20 (1), “value means the market value of the property at the time
and place of the crime . . . .” Evidence concerning the value of
certain property is sufficient so long as there is “a reasonable basis
for inferring, rather than speculating, that the value of the property
exceeded the statutory threshold” (People v Sheehy, 274 AD2d 844, 845,
lv denied 95 NY2d 938). Here, “[a]lthough the expert [who] appraise[d
the ATV] did not examine [it] or have any knowledge of its condition,
his testimony, taken together with the other evidence, established
that the [ATV’s] value was at least [$1,000]” (People v Callendar, 260
AD2d 315, 316, lv denied 93 NY2d 1015). The expert testified that the
resale value of a 1996 Honda Foreman 400 ATV, such as the one
possessed by defendant, was $1,100 “[i]f it starts up, runs and shifts
good.” Although, as noted above, the expert did not examine the ATV,
there was sufficient evidence for the jury to conclude that it
started, ran and shifted on the day that it was operated by defendant.
Indeed, the arresting officer testified that the ATV was traveling at
approximately 35 to 40 miles per hour when it passed by him shortly
before defendant was arrested, and an employee of the ski resort that
owned the ATV testified that it operated “fine” before it was stolen
and did not need any repairs when it was returned after defendant’s
arrest.

     Viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). Defendant failed to preserve for our review his contention that
he was denied a fair trial with respect to one of the alleged
instances of prosecutorial misconduct and, in any event, “we conclude
that any alleged [prosecutorial] misconduct was not so pervasive or
egregious as to deprive defendant of a fair trial” (People v
Pruchnicki, 74 AD3d 1820, 1822, lv denied 15 NY3d 855). The sentence
is not unduly harsh or severe. We note, however, that the certificate
of conviction incorrectly recites that defendant was convicted of
refusal to submit to a field breath test under Vehicle and Traffic Law
§ 1194 (1) (b), and it must therefore be amended to reflect that
                                 -3-                          1087
                                                         KA 10-01635

defendant was acquitted of that charge (see People v Saxton, 32 AD3d
1286).




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
