THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is modified on the law by reducing the conviction of criminal mischief in the third degree (Penal Law § 145.05[2] ) to criminal mischief in the fourth degree (§ 145.00[1] ) and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for sentencing on the conviction of criminal mischief in the fourth degree.

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him following a nonjury trial of criminal mischief in the third degree (Penal Law § 145.05[2] ) and possession of burglar's tools (§ 140.35) and, in appeal No. 2, he appeals from a resentence pursuant to which he was resentenced as a second felony offender.

With respect to the judgment in appeal No. 1, we agree with defendant that the conviction of criminal mischief in the third degree is not supported by legally sufficient evidence inasmuch as the People did not establish the value of the damage to the church property (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   A conviction of that crime requires proof beyond a reasonable doubt that the damage to the property exceeds $250 (Penal Law § 145.05[2];  see People v. Pluff, 217 A.D.2d 744).   The People presented evidence establishing that the police found defendant on a ladder against the church in question at night, and that they also found a copper gutter that was bent and folded next to the ladder.   The People, however, offered only hearsay testimony to establish the cost of the damage to the property, which is legally insufficient to support the conviction of criminal mischief (see People v. Jeffries, 151 A.D.2d 964, lv denied 74 N.Y.2d 848).   Nevertheless, the evidence is legally sufficient to establish that defendant intentionally damaged property (see People v. Civitello, 287 A.D.2d 784, 786-787, lv denied 97 N.Y.2d 703;  People v. Duran, 238 A.D.2d 351, 352;  People v. Brantley, 186 A.D.2d 1036, 1037, lv denied 81 N.Y.2d 785).   We therefore modify the judgment in appeal No. 1 by reducing the conviction of criminal mischief in the third degree to criminal mischief in the fourth degree (§ 145.00[1] ), “which requires no proof of value” (Duran, 238 A.D.2d at 352;  see CPL 470.15[2][a] ), and we modify the resentence in appeal No. 2 by vacating the sentence imposed on count one of the indictment (see CPL 470.15 [2][a] ).   We remit the matter to County Court for sentencing on the conviction of criminal mischief in the fourth degree (see CPL 470.20[4] ).   We have examined defendant's remaining contentions and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court