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The prejudicial effect of this error was exacerbated by the nature of the three assault counts

In one case, a criminal defendant filed an Appeal from a judgment of the Supreme Court, Kings County, convicting him of robbery in the first degree, grand larceny in the second degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence. The court Ordered that the judgment is modified, on the law, by reducing the defendant’s conviction of grand larceny in the second degree to petit larceny, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.

The Court agrees with the defendant’s contention that the value of the stolen jewelry was not established in accordance with Penal Law ยง 155.20(1), which requires proof of “the market value of the property at the time and place of the crimes, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime”.
Accordingly, his conviction for grand larceny in the second degree cannot stand. However, the evidence presented did establish the crime of petit larceny, which requires no proof of value. Accordingly, the judgment is modified to reduce his conviction of grand larceny in the second degree to petit larceny. There is no need to remit the matter for resentencing on that count as the defendant has already served the maximum period to which he could have been sentenced on the conviction of petit larceny.

Additionally, contrary to the defendant’s contention, he is not entitled to be resentenced because the sentencing minutes are lost. There is a presumption of validity and regularity which attends all judgments of conviction and that presumption may only be rebutted by substantial evidence to the contrary. When a transcript is missing, it is the defendant’s burden to demonstrate that genuine appealable issues exist and that alternative methods of providing an adequate record are not available. The defendant has not met this burden.

In another case, defendant filed an appeal from a judgment of the Supreme Court, Kings County, convicting him of manslaughter in the second degree, assault in the first degree, assault in the second degree (2 counts), grand larceny in the second degree, driving without a license, speeding, and disobeying traffic signals, upon a jury verdict, and imposing sentence.
The Court modified the judgment, (1) on the law, by reducing the conviction of manslaughter in the second degree to one of criminally negligent homicide, and vacating the sentence imposed thereon, and (2) on the law and as a matter of discretion in the interest of justice, by reversing the convictions of assault in the first degree, assault in the second degree (both counts) and grand larceny in the second degree and vacating the sentences imposed thereon. As so modified, judgment affirmed and case remanded to Criminal Term for a new trial on the charges of assault in the first degree, assault in the second degree (both counts) and grand larceny in the second degree and for resentencing on the conviction of criminally negligent homicide.

The evidence adduced at the trial was not legally sufficient to support the conviction of manslaughter in the second degree. The People failed to prove satisfactorily that defendant was aware of the risk of death created by his conduct and that he nonetheless consciously disregarded that risk. However, the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt of the crime of criminally negligent homicide. The People’s case showed with the requisite certainty that defendant failed to perceive a substantial and unjustifiable risk that his conduct would result in death and further that the risk was of such nature that defendant’s failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. The judgment is, therefore, modified accordingly.

In addition, the trial court committed reversible error when, with respect to its charge on the crime of grand larceny in the second degree, it omitted from its definition the statutory requirement that the withholding of the property be permanent or for so extended a period of time that the major portion of its economic value is lost. Such an omission could have misled the jury into thinking that any withholding, permanent or temporary, constituted larceny. The People contend that the error, if any, was harmless because defense counsel’s argument to the jury focused not on the issue of what defendant intended to do with the vehicle once he had stolen it, but rather on the issue of whether, in fact, he had stolen the vehicle at all.

The Court rejected the People’s position. Regardless of his proffered defense, defendant was entitled to have the jury consider each of the statutory elements of grand larceny in the second degree in determining his guilt or innocence of that crime. The omission from the court’s charge deprived defendant of that right.

The prejudicial effect of this error was exacerbated by the nature of the three assault counts upon which defendant stands convicted. All were based upon the theory that, in the course of, and in furtherance of the commission and attempted commission of a felony (to wit, grand larceny), and of immediate flight therefrom, the defendant caused either serious physical injury (assault in the first degree) or physical injury (two counts of assault in the second degree) to a person other than one of the participants.

Quite plainly then, the erroneous charge with respect to the grand larceny count also requires a new trial on each of the assault counts of which defendant was convicted.

Whatever the reason of a thief, stealing is legally and morally wrong. Here in Stephen Bilkis and Associates, our Kings County Grand Larceny lawyers, assist its clients to prosecute the cases handled by them. Call us now and share with us your problems. We will help you solve your problems.

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