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The PEOPLE of the State of New York, Respondent, v. Raisa ZILBERMAN, Defendant-Appellant.
Judgment, Supreme Court, New York County (Felice Shea, J. at pretrial subpoena proceedings; Bruce Allen, J. at jury trial and sentence), rendered March 12, 1999, convicting defendant of grand larceny in the third degree and criminal possession of stolen property in the third degree, and sentencing her, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.
The pretrial and trial courts properly refused to compel the department store from which the item in question was stolen to comply with defense subpoenas purportedly seeking information relevant to the market value of the stolen property. The subpoenas issued were procedurally defective; they were overly broad and set improper return dates (see Matter of Grand Jury Subpoenas, 72 N.Y.2d 307, 315-316, 532 N.Y.S.2d 722, 528 N.E.2d 1195, cert. denied 488 U.S. 966, 109 S.Ct. 492, 102 L.Ed.2d 529; People v. Gissendanner, 48 N.Y.2d 543, 547-551, 423 N.Y.S.2d 893, 399 N.E.2d 924). Moreover, defendant never pursued the appropriate remedy for failure to comply with an attorney-issued subpoena, which is a contempt proceeding (CPLR 2308[a]; Judiciary Law § 753[5] ).
The fact that the stolen suit bore a $3230 price tag, coupled with the totality of the testimony of the manager of the department where the suit had been offered for sale, warranted the conclusion that the market value of the suit exceeded the statutory threshold of $3000 (see People v. Irrizari, 5 N.Y.2d 142, 182 N.Y.S.2d 361, 156 N.E.2d 69; People v. Smith, 275 A.D.2d 673, 713 N.Y.S.2d 350, lv. denied 95 N.Y.2d 969, 722 N.Y.S.2d 487, 745 N.E.2d 407).
The jury's rejection of defendant's affirmative defense of duress was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's testimony that she stole the suit under duress presented a credibility issue for the jury and there is no basis upon which to disturb its determination (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Moreover, even accepting the truth of defendant's testimony, it did not establish the elements of a duress defense (see Penal Law § 40.00).
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Decided: September 17, 2002
Court: Supreme Court, Appellate Division, First Department, New York.
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