PEOPLE v. WANDELL (2001)

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered August 2, 1999, upon a verdict convicting defendant of the crimes of burglary in the third degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree.

In October 1998, defendant and his brother were observed exiting a storage trailer behind a Wal-Mart department store carrying several boxes of merchandise that they proceeded to hide in a nearby wooded area.   State Police, alerted to the suspicious activity, witnessed the two men loading the items into a vehicle.   As the two drove away, they were arrested.   Recovered from the vehicle were four paper shredders and discovered in the wooded area were six microwave ovens.   Following a jury trial, defendant was convicted of burglary in the third degree, grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree.   After being sentenced to concurrent terms of imprisonment aggregating 1 to 3 years, he appeals.

 Without merit is defendant's contention that a storage trailer does not meet the statutory definition of a “building” (see, Penal Law § 140.00[2]) for the purpose of a conviction of burglary in the third degree (see, Penal Law § 140.20).   The term “ ‘[b]uilding,’ in addition to its ordinary meaning, includes any structure * * * used by persons for carrying on business therein” (Penal Law § 140.00[2]).   Here, the record reveals that as part of Wal Mart's business, its employees would stock numerous trailers on its property with merchandise, and transfer items therefrom to its store on a daily basis.   Following the sale of larger items, customers were routinely instructed to drive to these trailers for direct pickup.   In our view, these facts demonstrate that the storage trailers, particularly the one at issue, constitute “buildings” within the meaning of the Penal Law (see, People v. Mincione, 66 N.Y.2d 995, 499 N.Y.S.2d 383, 489 N.E.2d 1285;  People v. Crandall, 285 A.D.2d 742, 728 N.Y.S.2d 580;  People v. Marino, 208 A.D.2d 564, 617 N.Y.S.2d 26, lv. denied 85 N.Y.2d 911, 627 N.Y.S.2d 334, 650 N.E.2d 1336;  People v. Jones, 190 A.D.2d 632, 594 N.Y.S.2d 989, lv. denied 81 N.Y.2d 1015, 600 N.Y.S.2d 203, 616 N.E.2d 860;  People v. Silva, 122 A.D.2d 750, 506 N.Y.S.2d 55;  People v. Ruiz, 120 A.D.2d 437, 502 N.Y.S.2d 453, affd. 68 N.Y.2d 855, 508 N.Y.S.2d 426, 501 N.E.2d 34;  see also, Franks v. State, 240 Ga.App. 685, 524 S.E.2d 545).

 We similarly reject defendant's contention that the People failed to prove that the value of the stolen property exceeded $1,000.   Value is defined as “the market value of the property” (Penal Law § 155.20 [1]) determined by the price at which it would “have been sold in the regular course of business at the time when and the place where * * * [it was] stolen” (People v. Irrizari, 5 N.Y.2d 142, 146, 182 N.Y.S.2d 361, 156 N.E.2d 69).   Without objection at trial, the People offered testimony from two Wal Mart employees which established, by either the price tags or sticker price, that the aggregate retail value of the stolen merchandise exceeded the $1,000 threshold to support a conviction of grand larceny in the fourth degree (see, Penal Law § 155.30[1];  People v. Irrizari, supra, at 146, 182 N.Y.S.2d 361, 156 N.E.2d 69;  People v. Wynn, 176 A.D.2d 375, 377, 574 N.Y.S.2d 83;  see also, People v. Smith, 275 A.D.2d 673, 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;  People v. Vaccarella, 177 A.D.2d 990, 990, 578 N.Y.S.2d 11, lv. denied 79 N.Y.2d 833, 580 N.Y.S.2d 213, 588 N.E.2d 111;  People v. Restifo, 53 A.D.2d 775, 776, 384 N.Y.S.2d 240;  cf., People v. Burt, 270 A.D.2d 516, 517, 705 N.Y.S.2d 90).

 With the sentence falling within permissible statutory limits and remaining less than the maximum term authorized by law (see, Penal Law § 70.00 [2][d], [e];  [3][b]), defendant's prior criminal record undermines his claim of extraordinary circumstances warranting a reduction in the interest of justice (see, People v. Ward, 282 A.D.2d 819, 823, 722 N.Y.S.2d 830, 835;  People v. Cleveland, 281 A.D.2d 815, 816, 721 N.Y.S.2d 876, 879;  People v. Fortune, 268 A.D.2d 686, 700 N.Y.S.2d 776).

ORDERED that the judgment is affirmed.

PETERS, J.

CARDONA, P.J., SPAIN, CARPINELLO and LAHTINEN, JJ., concur.