A man, the herein defendant, was observed by a police officer breaking into a motor vehicle using a screwdriver. He was then arrested and indicted. A New York Criminal Lawyer said the indictment originally charged him with, inter alia, attempted grand larceny in the second degree based on an allegation that he attempted to steal property, an automobile, with a value of more than $1,500. However, this charge was incorrect, inasmuch as the attempted grand larceny in the second degree, pursuant to Penal Law, requires an allegation that the property exceeded $50,000 in value. Thus, shortly before trial commenced, the prosecutor moved, without any objection by defense counsel, to amend the indictment to charge attempted grand larceny in the third degree on the basis that the defendant attempted to steal property valued in excess of $3,000. The proposed amendment was legally correct and conformed to the evidence and the instructions presented to the Grand Jury. However, although the court indicated that it would grant the motion, only the accusatory portion of the count was amended from attempted grand larceny in the second degree to attempted grand larceny in the third degree; the factual portion alleging that the value of the subject property exceeded $ 1,500 remained unchanged, and therefore, the count was still incorrect. Thereafter, on 8 August 1995, the Supreme Court of Queens County rendered judgment convicting him of attempted grand larceny in the third degree, criminal mischief in the third degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.
Consequently, the defendant files an appeal from the said decision.
The Ruling of the Court:
Although the court’s decision to amend the indictment to conform to the proof before the Grand Jury was not improper, the partial amendment which actually occurred created an inconsistency between the accusatory portion and the factual portion of the attempted grand larceny count. A New York Criminal Lawyer said it is a well established is the rule that where such a conflict exists, the factual portion of the count is controlling. Here, since the factual portion of the amended count only made out the offense of attempted grand larceny in the fourth degree, the defendant could not be convicted of the greater crime of attempted grand larceny in the third degree because the amended count did not allege the correspondingly higher monetary requirement for that offense. A New York Sex Crimes Lawyer said the trial evidence failed to persuasively establish that the monetary value of the subject automobile exceeded $3,000 in accordance with the court’s instructions to the jury; thus, the conviction of attempted grand larceny in the third degree cannot stand. Nonetheless, since the evidence clearly does support a finding that the value of the automobile exceeded $1,000, the court finds that the conviction of attempted grand larceny in the third degree must be reduced to attempted grand larceny in the fourth degree. Additionally, a New York Drug Possession Lawyer said that since the evidence failed to establish that the amount of damage which the defendant intentionally caused to the vehicle exceeded $250 so as to sustain his conviction of criminal mischief in the third degree, the court also finds that the conviction must be reduced to criminal mischief in the fourth degree, which requires no proof of value. There is no need to remit the matter for resentencing since the defendant has already served the maximum time to which he could have been sentenced on his conviction of the reduced offenses.
On the remaining contentions of the defendant, the court finds them to be either unpreserved for appellate review or bereft of merit.
In sum, the judgment is modified, on the law, by reducing the conviction of attempted grand larceny in the third degree to attempted grand larceny in the fourth degree, and reducing the conviction of criminal mischief in the third degree to criminal mischief in the fourth degree; as so modified, the judgment is affirmed.
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