SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
May 12, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from judgments of the Justice Court of the Town of Woodbury, Orange County (David L. Levinson, J.), rendered December 1, 2009. The judgments convicted defendant, upon jury verdicts, of petit larceny and criminal possession of stolen property in the fifth degree, respectively.
People v. Elkins (Scott)
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 12, 2011
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
ORDERED that the judgments of conviction are reversed, on the law, the accusatory instruments are dismissed, and the fines, if paid, are remitted.
Following a jury trial, defendant was convicted of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). In pertinent part, the accusatory instrument charging defendant with one count of petit larceny states that defendant "stole . . . clothes and jewelry from the Chloe outlet and the Neiman Marcus store" (emphasis added), and the accusatory instrument charging defendant with one count of criminal possession of stolen property in the fifth degree states that defendant "possessed . . . clothes and jewelry he had stolen from the Chloe outlet and the Neiman Marcus store" (emphasis added). It is noted that, by the use of the word "and," the accusatory instruments charged more than the People were required to prove under the statute (see People v Charles, 61 NY2d 321 ). Nevertheless, the court instructed the jury that in order for defendant to be guilty of the crimes charged, it had to find that defendant stole property and possessed stolen property from both the Chloe outlet and the Neiman Marcus store, rather than from either store. Since the People did not object to the heavier burden placed upon them by the court's instruction, they were bound to satisfy that burden (see People v Malagon, 50 NY2d 954 ; People v Bell, 48 NY2d 913 ).
There was no evidence to establish defendant's commission of a crime with respect to property from the Neiman Marcus store. Thus, the evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 ), was legally insufficient to establish defendant's guilt of the charges beyond a reasonable doubt (see CPL 470.15  [b]). Accordingly, the judgments of conviction are reversed and the accusatory instruments are dismissed (see CPL 470.20 ).
We pass on no other issue.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: May 12, 2011
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