Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered March 2, 2011.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on January 31, 2012
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND GORSKI, JJ.
The judgment convicted defendant, upon a jury verdict, of grand larceny in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is reversed on the law and the indictment is dismissed without prejudice to the People to file any appropriate charge.
Memorandum: In these two appeals, defendants appeal, respectively, from judgments convicting them following a single jury trial of grand larceny in the fourth degree (Penal Law § 155.30 ). The convictions arose from an incident in which defendants, according to the testimony of a store loss prevention officer presented by the People, stole numerous items of property by removing the store security sensors and hangers from the items, and then removing the items from the store by unknown means. Certain merchandise was apparently never recovered. Defendants were apprehended as they left the store, but no merchandise was recovered.
The People served CPL 710.30 notices of their intent to offer statements that defendants made to law enforcement officers at the time of their arrest, although the notices indicated that defendants made only exculpatory statements. During the trial, however, a sheriff's deputy testified that he asked defendant Sashalee N. Pallagi how defendants arrived at the mall, and she replied that a friend had given them a ride. Defendants objected, and replied in the affirmative when County Court asked if they were moving to strike the testimony. The court denied the motion, however, and the prosecutor thereafter cross-examined Sashalee on that point. In addition, the prosecutor argued during summation that the friend was part of the scheme to steal property.
We agree with defendants that the court erred in denying their motion to strike. Initially, we note that the People failed to preserve for our review their present contention that defendants' objection was untimely (see generally People v Hunter, 17 NY3d 725, 727-728; People v Whitley, 68 AD3d 790, 791, lv denied 14 NY3d 807; People v Garcia, 296 AD2d 509, 510).
"Whenever the people intend to offer at a trial . . . evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, . . . they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered" (CPL 710.30 ). The People need not provide all statements verbatim, "but they must be described sufficiently so that the defendant can intelligently identify them" (People v Lopez, 84 NY2d 425, 428). We conclude that the notice at issue is insufficient because it failed to provide defendants "with notice that adequately set out the sum and substance of [the] statements [presented by the People at trial] and permitted [defendants] to intelligently identify them" (People v Sturdevant, 74 AD3d 1491, 1492, lv denied 15 NY3d 810; cf. People v Chanowitz, 298 AD2d 767, 768-769, lv denied 99 NY2d 613). Contrary to the People's further contention, the statements were not pedigree information exempt from the notice requirement (cf. People v Rodney, 85 NY2d 289, 293). We therefore reverse the judgments. If this were the only meritorious argument presented by defendants, we would grant a new trial on the grand larceny charge of which they were convicted. We also conclude for the reasons that follow, however, that defendants are correct that the evidence is legally insufficient to support the conviction of grand larceny and thus that a new trial on that charge is not warranted. We therefore reverse the judgment in each appeal and dismiss the indictments, each of which charged the respective defendant solely with grand larceny in the fourth degree. Nevertheless, because we further conclude that the evidence is legally sufficient to support a conviction of petit larceny, we dismiss the indictments without prejudice to the People to file any appropriate lesser charge (see generally People v Holmes, 302 AD2d 936).
As noted, defendants further contend that the evidence is legally insufficient to support the conviction. Specifically, they contend that it is legally insufficient to establish that they stole property, that they took property from an owner thereof, and that the value of the stolen property exceeded $1,000. We note at the outset that defendants failed to preserve for our review their contention that the evidence is legally insufficient to establish that they took property "from an owner thereof" (Penal Law § 155.05 ; see People v Gray, 86 NY2d 10, 19-20). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), we conclude that there is legally sufficient evidence establishing that the store's loss prevention officer "had a possessory right which, however limited or contingent, was superior to that of defendant[s]" (People v Hutchinson, 56 NY2d 868, 869).
Contrary to defendants' further contention, there is legally sufficient evidence establishing that they stole property. The essential element of taking with respect to a larceny "is satisfied where the defendant exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights' " (People v Zombo, 28 AD3d 1233, 1234, lv denied 7 NY3d 794, 797, quoting People v Jennings, 69 NY2d 103, 118). Here, the People presented evidence establishing that defendants removed hangers and store security sensors from an unknown number of items and then concealed the items, and that certain items were removed from the store. ...