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

515
KA 11-01085
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEREL WALKER, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered January 11, 2011. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
grand larceny in the fourth degree (two counts), petit larceny and
criminal possession of stolen property in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law, the fourth count of the indictment is
dismissed without prejudice to the People to file or re-present to
another grand jury any appropriate charge under that count, the sixth
count of the indictment is dismissed, and a new trial is granted on
the third, ninth and 10th counts of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count each of burglary in the second degree
(Penal Law § 140.25 [2]), petit larceny (§ 155.25) and criminal
possession of stolen property in the fifth degree (§ 165.40) and two
counts of grand larceny in the fourth degree (§ 155.30 [1], [4]). We
agree with defendant that the evidence is legally insufficient to
support his conviction of grand larceny in the fourth degree under the
fourth count of the indictment because the People failed to establish
that the value of the stolen property exceeded $1,000. The evidence
with respect to the value of the jar of coins and the television set
consisted of “[c]onclusory statements and rough estimates of value[,
which] are not sufficient” to satisfy that element of the crime
(People v Loomis, 56 AD3d 1046, 1047). “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, reconsideration denied 16 NY3d
828). Nevertheless, because we further conclude that the evidence is
                                 -2-                           515
                                                         KA 11-01085

legally sufficient to support a conviction of petit larceny, we
reverse the conviction of grand larceny in the fourth degree under
Penal Law § 155.30 (1) and dismiss the fourth count of the indictment
without prejudice to the People to file or re-present to another grand
jury any appropriate charge under that count (see People v Jean-
Philippe, 101 AD3d 1582, 1583; People v Pallagi, 91 AD3d 1266, 1268).

     Although defendant failed to preserve for our review his further
contention that the evidence is legally insufficient to support his
conviction of grand larceny in the fourth degree under the sixth count
of the indictment, we 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 conclude that the conviction of that count is not
supported by legally sufficient evidence (see generally People v
Danielson, 9 NY3d 342, 349). The sixth count of the indictment
alleged that defendant stole a debit card issued by Bank of America to
a specified person, but the People failed to establish that such card
was stolen by defendant. We therefore reverse the remaining
conviction of grand larceny in the fourth degree and dismiss the sixth
count of the indictment.

     With respect to the remaining counts of the indictment, we agree
with defendant that County Court erred in allowing the People to
introduce evidence concerning an uncharged burglary to prove his
identity as the perpetrator of the burglary and petit larceny charged
in the indictment. The instant crime is “not so unique as to allow
admission of evidence of the [uncharged burglary] on the theory of the
similarity of the modus operandi” (People v Condon, 26 NY2d 139, 144;
see People v Mateo, 93 NY2d 327, 332). The court further erred in
admitting the testimony of a witness who identified defendant in an
out-of-court photo array procedure and thereafter identified him in
court. The People failed to satisfy their obligation pursuant to CPL
710.30 inasmuch as no statutory notice was given by the People with
respect to their intent to offer “testimony regarding an observation
of the defendant at the time or place of the commission of the offense
or upon some other occasion relevant to the case, to be given by a
witness who has previously identified him as such” (CPL 710.30 [1];
see People v Nolasco, 70 AD3d 972, 973-974). The errors in admitting
evidence of the uncharged burglary and the identification of defendant
are not harmless, considered singularly or in combination, inasmuch as
the proof of defendant’s guilt is not overwhelming, and there is a
significant probability that the jury would have acquitted defendant
had it not been for either of the errors (see generally People v
Arafet, 13 NY3d 460, 467; People v Crimmins, 36 NY2d 230, 241-242).
We therefore reverse the conviction of burglary in the second degree,
criminal possession of stolen property in the fifth degree and petit
larceny, and we grant defendant a new trial under counts three, nine
and 10 of the indictment.

     In light of our decision, we need not address defendant’s
contention that he was denied a fair trial by prosecutorial
misconduct. We nevertheless note our disapproval of the prosecutor’s
pervasive misconduct during summation. The prosecutor inappropriately
and repeatedly vouched for the credibility of prosecution witnesses
                                 -3-                           515
                                                         KA 11-01085

(see People v Moye, 12 NY3d 743, 744), suggested that defendant was a
liar (see People v Fiori, 262 AD2d 1081, 1081), characterized
defendant’s testimony as “smoke and mirrors” (see People v Spann, 82
AD3d 1013, 1015), and otherwise improperly denigrated the defense (see
People v Grady, 40 AD3d 1368, 1374, lv denied 9 NY3d 923).

     Finally, in view of our determination, we do not address
defendant’s remaining contentions.




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
