Calendar Date: September 11, 2013
David E. Woodin, Catskill, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: Peters, P.J., Rose, Lahtinen and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered February 24, 2012, convicting defendant following a nonjury trial of the crime of grand larceny in the fourth degree.
After defendant was seen leaving a home improvement store with five items of merchandise for which he had not paid, he was arrested and charged with grand larceny in the fourth degree. He waived a trial by jury and, following a bench trial at which he contested only the value of the stolen items, he was convicted as charged. He now appeals.
Although all five items were returned to the store and sold before defendant had an opportunity to inspect them, we agree with County Court that Penal Law § 450.10 applies only to the stolen air conditioner as that was the only item that was in police custody (see People v Chance, 71 A.D.3d 563, 564 , lv denied 15 N.Y.3d 748 ; People v Faucette, 201 A.D.2d 252, 253 ). While the police admittedly failed to give the statutory notice before returning that item to the store, the choice of an appropriate sanction is left to the sound discretion of the trial court (see People v Riley, 19 N.Y.3d 944, 946 ; People v Ruple, 74 A.D.3d 1487, 1489 , lv denied 15 N.Y.3d 895 ; People v Perkins, 56 A.D.3d 944, 945-946 , lv denied 12 N.Y.3d 786 ).
Here, County Court indicated that it would consider the statutory violation in determining the weight of the evidence, but found that the value of the air conditioner was adequately established by the store's loss prevention specialist. Despite the unavailability of the other four items that had been returned directly to the store by a third party, defense counsel was able to cross-examine the store employees regarding their value and the store's discounting policies. There was ample evidence, credited by County Court, that the combined value of the five stolen items was over $1, 000 and that none of the items was discounted at the time of the theft. Under these circumstances, we agree with County Court that there was no undue prejudice to defendant and find no abuse of discretion in its determination of the appropriate sanction (see People v Ruple, 74 A.D.3d at 1489-1490; People v Perkins 56 A.D.3d at 945-946).
Defendant's remaining contentions do not require extended discussion. First, his argument that his conviction must be reversed because his written waiver of a jury trial was not signed in accordance with the procedure required by CPL 320.10 (2) is unpreserved for our review (see CPL 470.05 ; People v Johnson, 51 N.Y.2d 986, 987-988 ). While defendant may have made a CPL 440.10 motion on this ground, that motion is not in the record now before us and does not preserve the issue on this appeal (see People v White, 104 A.D.3d 1056, 1056 , lvs denied 21 N.Y.3d 1018, 1021 ). Nor do the circumstances of his waiver warrant our reversal in the interest of justice. Second, defendant's argument that reversal is required pursuant to CPL 210.35 (5) is also unpreserved (see People v Gutierrez, 96 A.D.3d 1455, 1455 , lv denied 19 N.Y.3d 997 ). In any event, there was sufficient evidence, including defendant's confession, to sustain the indictment. Third, while there were two isolated instances of improper comments made during the grand jury proceedings, they were, under the circumstances here, unlikely to influence the proceedings (see People v Farley, 107 A.D.3d 1295, 1295-1296 , lv denied ___ N.Y.3d ___ [Sept. 27, 2013]; People v Kidwell, 88 A.D.3d 1060, 1061-1062 ; People v Crandall, 306 A.D.2d 748, 749 , lv denied 100 N.Y.2d 619 ).
Peters, P.J., Lahtinen and Egan Jr., JJ., ...