PEOPLE v. SHANNON (2008)

Appeal from a judgment of the County Court of Broome County (Smith, J.), entered November 21, 2005, upon a verdict convicting defendant of the crime of criminal mischief in the third degree.

Following a jury trial, defendant was convicted of one count of criminal mischief in the third degree based upon proof that he had slashed all four tires on the victim's pickup truck.   Defendant now appeals, contending that the prosecution failed to present legally sufficient evidence to establish that he caused damage of $250 or more to the vehicle (see Penal Law § 145.05[2] ).   We affirm.

 In a criminal mischief case, the damage to property is generally established by evidence of the reasonable cost of repairing the property (see People v. Katovich, 238 A.D.2d 751, 752, 656 N.Y.S.2d 499 [1997];  People v. Ladd, 220 A.D.2d 849, 849-850, 632 N.Y.S.2d 233 [1995], lv. denied 87 N.Y.2d 923, 641 N.Y.S.2d 605, 664 N.E.2d 516 [1996] ).   Where the property is not repairable, however, the replacement cost is an appropriate measure of the damage (see People v. Gray, 30 A.D.3d 771, 772, 816 N.Y.S.2d 609 [2006], lv. denied 7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006];  People v. Collins, 288 A.D.2d 756, 758, 733 N.Y.S.2d 289 [2001], lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358 [2002];  People v. Detwiler, 187 A.D.2d 973, 974, 591 N.Y.S.2d 110 [1992], lv. denied 81 N.Y.2d 787, 594 N.Y.S.2d 734, 610 N.E.2d 407 [1993];  see also Penal Law § 155.20[1] [“value” is defined as the cost of replacement if market value cannot be ascertained] ).

 Here, a police officer testified that the sidewalls of the victim's tires were punctured, and an experienced employee of a tire retailer testified that tires are not repairable if the puncture is in the sidewall.   From this testimony, which was unrebutted, the jury could reasonably draw the inference that the victim's tires could not be repaired, even though the tire retailer's employee had not examined those tires.   Since the employee also testified that the cost of the least expensive replacement tires for the victim's truck would exceed $500, and the victim confirmed that she actually paid such an amount to replace the tires, the evidence was legally sufficient to establish that the damage caused by defendant was in excess of $250.

ORDERED that the judgment is affirmed.

ROSE, J.

PETERS, J.P., LAHTINEN, KAVANAGH and STEIN, JJ., concur.