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

556
KA 08-02239
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CRAIG A. HUNTSMAN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered October 3, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal mischief in the fourth
degree (two counts), criminal mischief in the second degree,
aggravated harassment in the second degree (four counts), burglary in
the second degree, grand larceny in the fourth degree and criminal
contempt in the first 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 of grand larceny in
the fourth degree (Penal Law § 155.30 [1]) under count 11 of the
indictment to petit larceny (§ 155.25) and vacating the sentence
imposed on that count, and by reducing the conviction of criminal
contempt in the first degree (§ 215.51 [d]) under count 12 of the
indictment to criminal contempt in the second degree (§ 215.50 [3])
and vacating the sentence imposed on that count and as modified the
judgment is affirmed, and the matter is remitted to Ontario County
Court, for sentencing on the conviction of petit larceny and criminal
contempt in the second degree.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of 10 separate offenses stemming from multiple incidents,
defendant contends, inter alia, that misconduct on the part of the
prosecutor, Assistant District Attorney Jeffrey L. Taylor, requires
reversal. Although defense counsel failed to object to any of the
alleged acts of misconduct and thus failed to preserve defendant’s
present contention for our review (see People v Paul, 78 AD3d 1684,
1684-1685, lv denied 16 NY3d 834), we are nevertheless compelled to
exercise our power to address it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). This Court has
repeatedly admonished Mr. Taylor for various acts of misconduct
                                 -2-                           556
                                                         KA 08-02239

(People v Wildrick, 83 AD3d 1455, 1458, lv denied 17 NY3d 803; People
v Morrice, 61 AD3d 1390, 1391-1392; People v Carter, 31 AD3d 1167,
1169), yet the record on this appeal establishes that his misconduct
has continued. We again admonish Mr. Taylor and remind him that
prosecutors have “special responsibilities . . . to safeguard the
integrity of criminal proceedings and fairness in the criminal
process” (People v Santorelli, 95 NY2d 412, 421). With respect to the
trial at issue on this appeal, however, we “cannot say that his
[mis]conduct . . . jeopardize[d] the fairness of the trial” (People v
Johnson, 62 AD2d 555, 560, affd 47 NY2d 785, cert denied 444 US 857;
see People v Alicea, 37 NY2d 601, 603; Paul, 78 AD3d at 1685).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. Viewing the evidence, the law and
the circumstances of this case, in totality and as of the time of the
representation, we conclude on the record before us on this appeal
that defendant received meaningful representation (see generally
People v Flores, 84 NY2d 184, 186-187; People v Baldi, 54 NY2d 137,
147). Defense counsel investigated the allegations and presented a
detailed alibi notice. He made numerous pretrial motions, including
one for severance. He conceded counts for which the evidence was
unassailable, but thoroughly defended against counts for which there
was questionable evidence on the issue of identification. As a
result, defendant was acquitted of three charges.

     We agree with defendant that County Court erred in admitting his
cell phone records in evidence. They were neither municipal records
nor medical records, and thus they were not self-authenticating under
CPLR 4518 (c) (see People ex rel. Saafir v Mantello, 163 AD2d 824,
825). Furthermore, the records were not “so patently trustworthy as
to be self-authenticating” (People v Kennedy, 68 NY2d 569, 577 n 4).
Because the People otherwise failed to present a foundation for the
admission of the cell phone records under CPLR 4518 (a), they should
have been excluded (see People v Ramos, 13 NY3d 914, 914-915). We
conclude, however, that any error in the admission of those records is
harmless because the evidence of guilt is overwhelming and there is no
significant probability that the error infected the verdict (see
People v Crimmins, 36 NY2d 230, 241-242).

     Defendant failed to preserve for our review his further
contention that the court erred in admitting in evidence documentation
related to repair work that was performed on the complainant’s vehicle
(see People v Bell, 286 AD2d 443). We decline to exercise our power
to address that contention as a matter of discretion in the interest
of justice (see CPL 470.15 [6] [a]).

     With respect to the second count of the indictment, charging him
with criminal mischief in the second degree (Penal Law § 145.10),
defendant contends that the evidence is legally insufficient to
establish that the damage to the complainant’s vehicle exceeded
$1,500. Defendant failed to preserve that contention for our review,
however, inasmuch as he did not raise it in his motion for a trial
order of dismissal (see People v Culver, 34 AD3d 1270; People v
Chacon, 11 AD3d 906, 906, lv denied 3 NY3d 755; see generally People v
                                 -3-                           556
                                                         KA 08-02239

Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements
of the crime as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contentions that the verdict
on that count is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495) and that he was entitled to an
instruction on a lesser included offense (see generally People v
Glover, 57 NY2d 61, 63-64). There is no reasonable view of the
evidence that would have supported a finding that the amount of the
repairs to the complainant’s vehicle was less than the statutory
threshold such that he committed the lesser but not the greater
offense.

     With respect to the 11th and 12th counts of the indictment,
charging defendant with grand larceny in the fourth degree and
criminal contempt in the first degree, defendant contends that the
evidence is legally insufficient to establish the value of the items
that were stolen and damaged. Even assuming, arguendo, that defendant
failed to preserve those contentions for our review (see generally
Gray, 86 NY2d at 19), we would nevertheless exercise our power to
address them as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]; People v Avino, 34 AD3d 1251, 1252). We agree
with defendant that the evidence on the monetary value of the items
allegedly stolen and damaged is legally insufficient to support the
conviction of those crimes.

     The sole evidence concerning the value of the items that were
allegedly stolen was the testimony of the complainant, who estimated
that the value of the two family rings that were stolen was “probably
over 1500 [sic] to $2,000.” With respect to the clothing and other
unidentified items that were taken, the complainant testified that the
value of those items was “[a]t least 3500.” Indeed, we note that an
officer investigating the burglary testified that the complainant had
informed him that the jewelry that was taken “had very sentimental
value to her but little monetary value. The only other items missing
were her jeans and panties.” It is well established that
“ ‘[c]onclusory statements and rough estimates of value are not
sufficient’ ” to establish the value of a stolen item under Penal Law
§ 155.20 (1) (People v Pallagi, 91 AD3d 1266, 1269; see People v
Smith, 289 AD2d 1056, 1058-1059, lv denied 98 NY2d 641; see generally
People v Lopez, 79 NY2d 402, 404-405).

     We therefore modify the judgment by reducing the conviction under
count 11 to petit larceny (see CPL 470.15 [2] [a]), and we remit the
matter to County Court for sentencing on that conviction (see Avino,
34 AD3d at 1254; Smith, 289 AD2d at 1058). Based on our resolution of
this issue, we do not address defendant’s alternative contentions
related to count 11.

     With respect to count 12, the only evidence that the damage to
the complainant’s residence exceeded the monetary threshold required
for criminal contempt in the first degree under Penal Law § 215.51
(d), was the testimony of a police investigator who stated that, based
on his training and experience, the total amount of damage was
“[p]robably around $500.” “[T]he witness’[s] general approximation of
                                 -4-                          556
                                                        KA 08-02239

the cost of repairing or replacing various property items was
insufficient to establish the amount of damage” (People v Brantley,
186 AD2d 1036, 1036, lv denied 81 NY2d 785; see People v Quigley, 70
AD3d 1411, 1412; People v Jackson, 269 AD2d 867, lv denied 95 NY2d
798). We therefore modify the judgment by reducing that conviction to
criminal contempt in the second degree (§ 215.50 [3]), for which no
proof of value is required (see Quigley, 70 AD3d at 1412), and we
remit the matter to County Court for sentencing on that conviction as
well. Based on our resolution of this issue, we do not address
defendant’s alternative contention related to count 12.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
