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

715
KA 11-02526
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL CRUZ, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Terrence
M. Parker, A.J.), rendered November 1, 2011. The judgment convicted
defendant, upon a jury verdict, of grand larceny 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 and on the law by reducing the conviction to petit larceny and
vacating the sentence, and as modified the judgment is affirmed, and
the matter is remitted to Cattaraugus County Court for sentencing.

      Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of grand larceny in the third degree (Penal Law
§ 155.35 [1]), which arose out of the theft of four puppies of a
certain breed. Defendant contends that the conviction is not
supported by legally sufficient evidence because the People failed to
establish, among other things, that the value of the stolen property
exceeded $3,000. Defendant concedes that he failed to preserve for
our review his challenges to the legal sufficiency of the evidence.
We nevertheless exercise our power to review his challenge with
respect to the value of the stolen puppies as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]), and we conclude
that the conviction is not supported by legally sufficient evidence
with respect thereto (see generally People v Danielson, 9 NY3d 342,
349).

     The People were required to establish beyond a reasonable doubt
that the market value of the stolen puppies at the time of the crime
exceeded $3,000 (see Penal Law § 155.20 [1]), and they attempted to
meet that burden with testimony from the victim of the crime. We
note, however, that “[l]egally sufficient evidence of value is not
supplied by the opinion testimony of a victim who is not qualified to
testify as an expert” (People v Stein, 172 AD2d 1060, 1060, lv denied
                                 -2-                           715
                                                         KA 11-02526

78 NY2d 975) and, here, the victim testified that he was not a dog
expert. In any event, the victim’s substantive testimony concerning
the value of the stolen puppies amounted to merely speculative
statements of value, and not conclusive proof thereof (see generally
People v Harold, 22 NY2d 443, 445; People v Loomis, 56 AD3d 1046,
1047). Notably, the victim testified that he had advertised the
puppies and sold one of them under the representation that it was of a
certain breed, but the puppies were, in fact, of another breed.
Therefore, “[o]n this record, we cannot conclude that the jury 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 Morgan, 111 AD3d 1254, 1257 [internal quotation
marks omitted]). Inasmuch as the proof of value in excess of $3,000
is insufficient, we reduce the conviction to petit larceny (Penal Law
§ 155.25; see People v Vandenburg, 254 AD2d 532, 534, lv denied 93
NY2d 858), and we remit the matter to County Court for sentencing on
that reduced conviction.

     We have reviewed defendant’s remaining contentions and conclude
that none warrants further modification or reversal of the judgment.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
