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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Theodore R. COOPER, Appellant.


Decided: July 08, 2021

Before:  Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ. Adam H. Van Buskirk, Auburn, for appellant. Kirk O. Martin, District Attorney, Owego (Cheryl Mancini of counsel), for respondent.


Appeal from a judgment of the County Court of Tioga County (Keene, J.), rendered February 16, 2018, upon a verdict convicting defendant of the crime of grand larceny in the third degree.

At approximately 1:30 a.m. on February 8, 2017, a deputy sheriff observed a pickup truck leaving a business that sold tractor parts, among other things.  When the deputy initiated a traffic stop, the truck pulled over and two passengers fled on foot.  After observing numerous metal parts in the bed of the truck, the deputy secured defendant, who was in the driver seat.  Defendant and the two codefendants were thereafter jointly charged by indictment with grand larceny in the third degree for stealing tractor parts.  After County Court denied defendant's suppression motion, a jury convicted him of the sole count.1  The court sentenced him, as a second felony offender, to a prison term of 3 to 6 years.  Defendant appeals.

Defendant contends that he was arrested without probable cause, so County Court should have suppressed the tractor parts seized from the truck.  “Where a police officer reasonably suspects that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person.  To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion” (People v. Smith, 185 A.D.3d 1203, 1204, 126 N.Y.S.3d 819 [2020] [internal quotation marks and citations omitted]).  “If the intrusion involved is of sufficient magnitude, it can constitute an arrest, but not every seizure where a police officer ․ handcuffs an individual necessarily elevates the [detention] to a full-blown arrest” (People v. Stroman, 107 A.D.3d 1023, 1023–1024, 967 N.Y.S.2d 202 [2013] [citations omitted], lv denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013];  see People v. Allen, 73 N.Y.2d 378, 380, 540 N.Y.S.2d 971, 538 N.E.2d 323 [1989];  People v. Gray, 143 A.D.3d 909, 909, 39 N.Y.S.3d 239 [2016], lvs denied 28 N.Y.3d 1143, 1145, 52 N.Y.S.3d 294, 74 N.E.3d 679 [2017]).  “In the absence of a warrant, a lawful arrest is one that is supported by probable cause,” which “exists when an officer has knowledge of facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed” (People v. Drayton, 189 A.D.3d 1888, 1890, 138 N.Y.S.3d 275 [2020] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 216, 169 N.E.3d 574 [2021]).  “A suppression court's factual determinations and credibility assessments are entitled to great weight and will not be overturned on appeal unless clearly erroneous or contrary to the evidence” (People v. Wideman, 192 A.D.3d 1384, 1385, 145 N.Y.S.3d 194 [2021] [citations omitted];  see People v. Lowndes, 167 A.D.3d 1228, 1229, 89 N.Y.S.3d 791 [2018]).

At the suppression hearing, the deputy testified that he was parked and conducting radar patrol in the early morning hours when he observed a truck exit the parking lot of a tractor parts business that was closed.  The deputy followed the truck and initiated a traffic stop after noticing that the license plate was obscured and the vehicle swerved over the double yellow lines.  When the truck pulled over, one passenger immediately fled on foot and another fled soon thereafter.  As he approached the truck, the deputy noticed that its bed was loaded with metal parts.  Defendant, who was “very sweaty” and “looked exhausted,” was sitting in the driver seat.  The deputy obtained defendant's identification, handcuffed him and placed him in a patrol car.  The owner of the business testified that, upon receiving a call from the police in the early morning hours, he went to the scene of the traffic stop, which was a short distance from his home and business.  He identified the tractor parts in the truck as having come from his business and attested that defendant did not have permission to take those parts.

Defendant concedes that the stop was justified based on observed traffic violations (see Vehicle and Traffic Law §§ 402[1][b];  1120[a]).  The deputy's “conduct in placing defendant in handcuffs and [sitting] him in the back seat of the patrol car constituted ․ a forcible detention, which required [the deputy] to have a reasonable suspicion that defendant was involved in a felony or misdemeanor” (People v. Swain, 168 A.D.3d 1130, 1131–1132, 90 N.Y.S.3d 403 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 729, 133 N.E.3d 433 [2019];  see People v. Pruitt, 158 A.D.3d 1138, 1139, 70 N.Y.S.3d 691 [2018], lvs denied 31 N.Y.3d 1120, 81 N.Y.S.3d 380, 106 N.E.3d 763 [2018];  People v. Stroman, 107 A.D.3d at 1024, 967 N.Y.S.2d 202).  Upon review we find that the deputy's testimony, as set forth above, provided grounds supporting a reasonable suspicion that justified his actions in handcuffing defendant and placing him in the patrol car for a brief investigatory detention (see People v. Pruitt, 158 A.D.3d at 1139–1140, 70 N.Y.S.3d 691;  People v. Delvillartron, 120 A.D.3d 1429, 1432, 992 N.Y.S.2d 363 [2014]).  Having encountered this uncertain situation, the deputy was justified in continuing to forcibly detain defendant while he attempted to locate the men who had fled and to quickly confirm or dispel his reasonable suspicion that defendant had stolen the tractor parts (see People v. Griffin, 188 A.D.3d 1701, 1703, 136 N.Y.S.3d 619 [2020], lv denied 36 N.Y.3d 1050, 140 N.Y.S.3d 879, 164 N.E.3d 966 [2021], cert denied ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 1520929 [Apr. 19, 2021];  People v. Rose, 72 A.D.3d 1341, 1344–1345, 899 N.Y.S.2d 414 [2010], lv denied 16 N.Y.3d 745, 917 N.Y.S.2d 627, 942 N.E.2d 1052 [2011]).  When the owner arrived at the scene a short time later and provided clarifying information, the deputy obtained probable cause to arrest defendant (see People v. Rose, 72 A.D.3d at 1345, 899 N.Y.S.2d 414).  Accordingly, we will not disturb County Court's decision to deny defendant's suppression motion.

Defendant's legal sufficiency challenge is unpreserved, as he failed to move for a trial order of dismissal (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008];  People v. Farnham, 136 A.D.3d 1215, 1215, 26 N.Y.S.3d 378 [2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016]).  “Nevertheless, in reviewing whether the verdict is against the weight of the evidence, this Court necessarily must ensure that the People proved each element of the crime beyond a reasonable doubt” (People v. White–Span, 182 A.D.3d 909, 910, 122 N.Y.S.3d 818 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1071, 129 N.Y.S.3d 381, 152 N.E.3d 1183 [2020];  see People v. Garrand, 189 A.D.3d 1763, 1763, 134 N.Y.S.3d 583 [2020], lv denied 36 N.Y.3d 1120, 146 N.Y.S.3d 229, 169 N.E.3d 587 [2021]).  As relevant here, “[a] person is guilty of grand larceny in the third degree when he or she steals property and ․ when the value of the property exceeds [$3,000]” (Penal Law § 155.35[1]).  “In determining the value of stolen property, the jury need only have a reasonable, rather than speculative, basis for inferring that the value exceeded the statutory requirement.  Because property valuation is not strictly a subject for expert testimony, opinion testimony by a lay witness is competent to establish the value of the property if the witness is acquainted with the value of similar property” (People v. Butcher, 192 A.D.3d 1196, 1198–1199, 142 N.Y.S.3d 665 [2021] [internal quotation marks, brackets and citations omitted], lv denied 36 N.Y.3d 1118, 146 N.Y.S.3d 190, 169 N.E.3d 548 [2021];  see People v. Guarnieri, 122 A.D.3d 1078, 1079, 996 N.Y.S.2d 776 [2014]).

At trial, the deputy testified that he did not see the truck enter the business’ parking lot, the back of the lot was not visible from where he was parked across the street, and he had been parked there for more than half an hour when he saw the truck exit the lot.  While traveling behind the truck, he noticed that it was stacked high with metal parts.  After the other two men fled, the deputy noticed that defendant was “heavily exhausted,” “soaked in sweat” and out of breath.  The owner testified that the business was closed at the relevant time and the yard is not open to the public when the business is closed.  He also testified that defendant did not have permission to be in the yard at that time or to take any tractor parts.  Surveillance video from the business depicted a truck entering the yard at 12:23 a.m. and leaving at 1:27 a.m. While the truck was in the yard, three people exited it, they removed items from shelves and pallets and placed them in the truck, and the truck moved around in the yard without using its headlights.  This evidence and reasonable inferences supported by it proved that defendant and his two codefendants stole the tractor parts that the deputy found in the truck.

The owner testified that the business, among other things, buys tractors and dismantles them for used parts.  The owner is responsible for pricing the used tractor parts, which he has done each workday for more than 40 years.  He identified the parts in the bed of the truck as having been taken from his business.  He went through the stolen parts individually and placed a value on each, taking into consideration the age and condition of the parts;  he testified that his price estimates were conservative.  He was familiar with these parts from his experience of having previously priced and sold ones of the same makes and models.  The owner testified that he essentially sets the market price for used tractor parts in the area, as the next nearest dealer is located almost two hours away.  According to the owner's testimony, as supported by his detailed written statement listing each part and the price he assigned, the total fair market value of all the stolen parts was $5,410.  On cross-examination, the owner acknowledged that he had previously signed another witness statement that had noted the total value was “greater than a thousand dollars,” but without a precise number listed.

Based on the evidence concerning the value of the stolen parts, including the owner having issued a prior statement that differed from his later and more detailed estimate, a different verdict would not have been unreasonable.  Although the owner was not certified as an expert witness, he had over 40 years of experience valuing these items, owned the only tractor parts business in his locality and specifically attested to his knowledge and experience in dealing with each of the stolen parts.  Accordingly, his testimony “provided a reasonable basis for the jury to determine that the value of the [tractor parts] exceeded $3,000” (People v. Butcher, 192 A.D.3d at 1199, 142 N.Y.S.3d 665;  see People v. Furman, 152 A.D.3d 870, 874, 59 N.Y.S.3d 165 [2017], lv denied 30 N.Y.3d 1060, 71 N.Y.S.3d 10, 94 N.E.3d 492 [2017];  People v. Helms, 119 A.D.3d 1153, 1154–1155, 990 N.Y.S.2d 314 [2014], lv denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014]).  Weighing the relative probative force of conflicting testimony and according deference to the jury's credibility determinations, the verdict was not against the weight of the evidence.

Defendant requested that County Court charge grand larceny in the fourth degree and petit larceny as lesser included offenses of grand larceny in the third degree.  The court charged grand larceny in the fourth degree but declined to charge petit larceny.  “A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” (People v. Burns, 188 A.D.3d 1438, 1442, 136 N.Y.S.3d 532 [2020] [internal quotation marks and citations omitted], lvs denied 36 N.Y.3d 1055, 1060, 141 N.Y.S.3d 751, 165 N.E.3d 677 [2021]).  “In determining whether such a reasonable view exists, the evidence must be viewed in the light most favorable to [the] defendant” (People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 [1983] [citation omitted]).  As previously noted, “[a] person is guilty of grand larceny in the third degree when he or she steals property” valued in excess of $3,000 (Penal Law § 155.35[1]).  In contrast, grand larceny in the fourth degree requires proof that the stolen property is valued in excess of $1,000 (see Penal Law § 155.30[1]), and petit larceny has no minimum value requirement for the stolen property (see Penal Law § 155.25).

Petit larceny is a lesser included offense of grand larceny in the third degree (see People v. Ferrara, 121 A.D.2d 159, 160, 502 N.Y.S.2d 742 [1986];  People v. Blume, 48 A.D.2d 616, 616, 368 N.Y.S.2d 4 [1975];  People v. Dotson, 46 A.D.2d 690, 691, 360 N.Y.S.2d 267 [1974]), thus satisfying the first prong for a request of a lesser included offense charge.  As to the second prong, the record reveals certain discrepancies in the owner's testimony regarding the value of the stolen property – namely, that he initially valued the property at greater than $1,000, without a specific number, and later valued it at $5,410.  Thus, a reasonable view of the evidence could have supported a finding that the stolen property had a value of less than $3,000 but more than $1,000.  This evidence supported defendant's request for a charge of grand larceny in the fourth degree, but not for petit larceny, as there was no evidence to support a finding that the property was worth less than $1,000 (see People v. Mirras, 111 A.D.2d 1029, 1029–1030, 490 N.Y.S.2d 343 [1985], lv denied 66 N.Y.2d 765, 497 N.Y.S.2d 1039, 488 N.E.2d 125 [1985]).  Accordingly, County Court did not err in declining to give the jury a petit larceny charge.2

We reject defendant's argument that he was denied the effective assistance of counsel (see People v. McCoy, 169 A.D.3d 1260, 1265, 95 N.Y.S.3d 441 [2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019];  People v. Mosley, 155 A.D.3d 1124, 1128, 64 N.Y.S.3d 707 [2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018]).  Considering defendant's prior criminal history, we do not find the sentence to be harsh or excessive (see People v. Butcher, 192 A.D.3d at 1199, 142 N.Y.S.3d 665;  People v. Gilmore, 177 A.D.3d 1029, 1029–1030, 114 N.Y.S.3d 126 [2019], lvs denied 35 N.Y.3d 970, 125 N.Y.S.3d 44, 148 N.E.3d 508 [2020]).  Defendant's remaining contentions are without merit.

ORDERED that the judgment is affirmed.


1.   One codefendant pleaded guilty to the sole count and the other codefendant died prior to trial.

2.   In any event, any error in failing to charge petit larceny would be harmless here, as the jury was charged with a lesser offense – grand larceny in the fourth degree – and still convicted defendant of the original greater offense.  As juries are instructed not to consider lesser included offenses unless they find the defendant not guilty of the charged crime (see CJI2d[NY] Lesser Included Offenses), it would be illogical and contrary to such instructions to believe that the jury would have convicted defendant of an even lower level offense.

Garry, P.J.

Lynch, Clark, Aarons and Colangelo, JJ., concur.

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