A Queens Grand Larceny Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered October 28, 2010, convicting him of grand larceny in the first degree, upon his plea of guilty and imposing sentence.
A Queens Criminal Lawyer said that, the defendant was charged, by felony complaint, with, inter alia, grand larceny in the first degree under Penal Law § 155.42. The felony complaint alleged that the defendant knowingly and unlawfully stole property exceeding one million dollars in value by using personal identifying information he received from four named individuals, and, inter alia, securing mortgages on two properties in the name of one of the alleged victims without that individual’s knowledge or permission. The defendant waived indictment by a grand jury and pleaded guilty under superior court information to grand larceny in the first degree and scheme to defraud in the first degree, although the plea to the scheme to defraud count was subsequently vacated at the time of sentencing. The charge in the superior court information named two financial institutions “and others” as alleged victims of the crimes. As the defendant properly contends, the judgment of conviction must be reversed, the plea vacated, and the superior court information dismissed.
The issue in this case is whether the court erred in convicting defendant of the crime of grand larceny.
The grand larceny in the first degree count in the superior court information was not an “offense for which the defendant had been held for action of a grand jury”, in that it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint. The designation of the alleged victims in the superior court information differed from those named in the felony complaint. Thus, the criminal superior court information to which the defendant pleaded guilty did not “include at least one offense that was contained in the felony complaint”, and, consequently, the superior court information was jurisdictionally defective. This defect survives the defendant’s failure to raise this claim in the Supreme Court, his plea of guilty, and his waiver of the right to appeal.
In order to convict the defendant of the crime of attempted grand larceny in the second degree it was incumbent upon the People to prove beyond a reasonable doubt that the value of the property which the defendant attempted to steal exceeded $1,500. Similarly, in order to convict the defendant of criminal mischief in the second degree, the People were required to prove beyond a reasonable doubt that the defendant damaged property of another in an amount exceeding $1,500. The term “value” is defined in Penal Law § 155.20(1) as: “the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.”
In the instant case, the People have failed to meet their burden of proof on the issue of value. The only evidence of the actual value of the subject cables was the testimony of People’s witnesses, who testified that the value of the cables as set forth by the “engineering group” was $7,000. This testimony was hearsay and was erroneously admitted into evidence. As no other evidence of the monetary value of the cables was adduced, the People failed to meet their burden of proving every element of the crimes of attempted grand larceny in the second degree and criminal mischief in the second degree beyond a reasonable doubt. However, the evidence presented did establish the crimes of attempted petit larceny and criminal mischief in the fourth degree, and we have modified the judgment accordingly.
Accordingly, the court held that the judgment is reversed, on the law, the plea is vacated, the superior court information is dismissed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the felony complaint.
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