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

596
KA 12-00532
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDREA RASZL, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MARK MOODY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered January 30, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of stolen
property 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 by reducing the sentence of incarceration imposed to a
definite sentence of seven months incarceration and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of criminal possession of stolen property in the
third degree (Penal Law § 165.50), and sentencing her to an
indeterminate term of incarceration of 2a to 7 years. As the People
correctly concede, the sentence imposed is unduly harsh and severe,
but we reject defendant’s contention that probation would now be an
illegal disposition (see generally People v Becker, 71 AD3d 1372,
1372). As a matter of discretion in the interest of justice, however,
we modify the judgment of conviction by reducing the sentence imposed
to a definite sentence of seven months incarceration (see CPL 470.15
[6] [b]; Penal Law § 70.00 [4]).

     Contrary to defendant’s further contention, the conviction of
criminal possession of stolen property in the third degree is
supported by legally sufficient evidence that the value of the stolen
property exceeded $3,000 (see generally Penal Law § 165.50; People v
Bleakley, 69 NY2d 490, 495). 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]). We conclude that the record establishes that “the jury
                                 -2-                           596
                                                         KA 12-00532

ha[d] a reasonable basis for inferring, rather than speculating, that
the value of the [stolen] property exceeded the statutory threshold”
of $3,000 (People v Pallagi, 91 AD3d 1266, 1270 [internal quotation
marks omitted]). Finally, defendant contends that defense counsel was
ineffective because he failed to challenge the adequacy of the CPL
710.30 notice. We reject that contention. “It is well settled that
‘[t]here can be no denial of effective assistance of trial counsel
arising from counsel’s failure to “make a motion or argument that has
little or no chance of success” ’ ” (People v Johnson, 81 AD3d 1428,
1428-1429, lv denied 16 NY3d 896, quoting People v Caban, 5 NY3d 143,
152). Here, the People filed a notice pursuant to CPL 710.30
indicating that a statement of defendant that was intended to be used
at trial was attached to the notice, and there is no dispute that the
written statement was attached thereto. Defendant was therefore
furnished with notice that adequately set out the time and place and
the sum and substance of her statement, and permitted her to
intelligently identify it (see generally People v Lopez, 84 NY2d 425,
428; People v Sumter, 68 AD3d 1701, 1701, lv denied 14 NY3d 893).
Thus, defense counsel’s failure to move to preclude the statement on
the ground of insufficient notice does not constitute ineffective
assistance because such a motion would have had little or no chance of
success (see Caban, 5 NY3d at 152).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
