On 13 February 2008, the criminal defendant was convicted of grand larceny in the fourth degree, upon a jury verdict. The defendant appealed. The appeal brought up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress the identification testimony.
On appeal, the judgment was modified, on the law, and the defendant’s conviction of grand larceny in the fourth degree was reduced to petit larceny, and the sentence imposed thereon was vacated. However, since the defendant has already served the maximum permissible sentence for that crime, the matter was remitted to the trial court for sentencing to time served on the conviction for petit larceny.
First, the trial court properly denied that branch of the defendant’s omnibus motion which was to suppress the identification testimony. Indeed, the defendant sufficiently preserved his contentions for appellate review in this regard. However, the People established that the photo array was not improper, and the defendant failed to establish that the procedure was unduly suggestive. In particular, although there was conflicting evidence as to whether the first witness may have been present in the room when the second witness viewed the photo array, that evidence would not, by itself, taint the second witness’s identification testimony, absent evidence of communication between the two witnesses, which was not present. Moreover, the trail court also did not err in determining that the photos of the fillers used in the array sufficiently resembled the defendant’s photo, and that the array was not unduly suggestive. Further, there was no merit to the defendant’s contention that the fact that each witness was shown only a single array of six photos, by itself, rendered the photo array procedure improper.
Second, the defendant’s challenge to the trial court’s Sandoval ruling lacked merit. The defendant’s past felony were relevant to the issue of credibility because they demonstrated the defendant’s willingness to deliberately further his self-interest at the expense of society. Moreover, the prosecutor was not permitted to inquire about the specific nature of the prior charges of which the defendant was convicted, nor the underlying facts of those prior crimes. Clearly, the trial court struck an appropriate balance between the probative value of the defendant’s prior crimes on the issue of his credibility and the possible prejudice to the defendant, and the defendant failed to sustain his burden of demonstrating that the prejudicial effect of the evidence of his prior convictions so outweighed its probative worth that its exclusion was warranted.
Third, the defendant received the effective assistance of counsel under both the state and federal standards.
Fourth, the defendant failed to preserve for appellate review his contentions that there was legally insufficient proof of his identity or that he completed the takings of the property as charged. In any event, those contentions were without merit. In addition, the jury’s findings as to the defendant’s identity and as to his completion of the crimes were not against the weight of the evidence. However, there was legally insufficient proof as to the value of the property taken. The defendant was charged with a single count of grand larceny in the fourth degree, based on his having allegedly taken property with a value of over $1,000 in an ongoing course of conduct and common plan and scheme on the dates of the two incidents. However, the evidence was not sufficient to prove that the television allegedly stolen in the first incident had a value of over $1,000, as there was insufficient proof as to the specific type of television that was taken. In the second incident, it was undisputed that the value of the goods taken was less than $1,000.
Fifth, there was insufficient proof that the two incidents, together, constituted a common scheme or plan. Grand larceny may be charged as a series of single larcenies governed by a common fraudulent scheme or plan under some circumstances where property is stolen from the same owner and place by a series of acts pursuant to a single, sustained, criminal impulse, comprised of a unitary plan or design. Here, however, the evidence was insufficient to demonstrate that the two takings of property constituted an ongoing fraudulent scheme or plan, as there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud. Therefore, the two incidents could not be considered in the aggregate for purposes of determining the value of the goods taken. Consequently, there was insufficient proof of the value of the goods to establish the count of grand larceny in the fourth degree. However, the evidence was legally sufficient to establish the lesser-included charge of petit larceny.
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