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

1186
KA 13-01146
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRELL W. VANDEMORTEL, DEFENDANT-APPELLANT.


J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-APPELLANT.

BARRY L. PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.


     Appeal from a judgment of the Seneca County Court (Dennis F.
Bender, J.), rendered March 4, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal possession of stolen
property in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of criminal possession of stolen property in the fourth degree
(Penal Law § 165.45 [1]), defendant contends that the evidence is not
legally sufficient to establish that the value of the stolen property,
i.e., a backhoe, exceeded $1,000 at the time of the crime. We reject
that contention. It is well settled that “the market value of a
stolen item is to be measured by what the thief would have had to pay
had he purchased the item instead of stealing it” (People v Harold, 22
NY2d 443, 445). “It is axiomatic that in determining value the
condition of the item must be taken into account” (People v Bayusik,
192 AD2d 1073, 1074, affd 83 NY2d 774). Furthermore, “[w]here . . .
the cost of the property at issue is ‘substantially above the monetary
value prescribed by the applicable penal statute and other facts
adduced at trial, such as the description of the condition of the
property at the time of the [crime] and the period of time [that]
elapsed between the date of purchase and the date of [crime], negate
the possibility that the [property’s] market value has significantly
depreciated, there exists sufficient evidence from which the jury
could infer, beyond a reasonable doubt, that the market value of the
[property] at the time and place of the [crime] was in excess of the
statutory minimum necessary to sustain a conviction’ ” (People v
Alexander, 41 AD3d 1200, 1201, lv denied 9 NY3d 920, quoting People v
James, 111 AD2d 254, 255-256, affd 67 NY2d 662).

     Here, the People introduced evidence that the backhoe was
manufactured in the early 1970s, and that the owner bought it several
                                 -2-                          1186
                                                         KA 13-01146

years before the crime for $6,500. The People also introduced
evidence that the backhoe’s owner maintained it and installed several
new parts, including a fuel pump that cost nearly $725. In addition,
the People introduced evidence that the backhoe remained operational
and that the owner used it every summer until the summer of 2011 when
it was stolen. We conclude that the evidence, viewed in the light
most favorable to the People (see People v Contes, 60 NY2d 620, 621),
is legally sufficient to establish that the value of the backhoe
exceeded the statutory threshold of $1,000 at the time of the crime
(see People v Stein, 172 AD2d 1060, 1060-1061, lv denied 78 NY2d 975).




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
