People v. Gonzalez

• Decision Date: 14 November 1995
• Citation: 633 N.Y.S.2d 482,221 A.D.2d 203
• Parties: The PEOPLE of the State of New York, Respondent, v. Eddie GONZALEZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 482

633 N.Y.S.2d 482

221 A.D.2d 203

The PEOPLE of the State of New York, Respondent, v. Eddie GONZALEZ, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 14, 1995.

P.D. Coddington, for respondent.

K.E. Pflanz, for defendant-appellant.

Before SULLIVAN, J.P., and ELLERIN, RUBIN, KUPFERMAN and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered July 7, 1993, convicting defendant, after a jury trial, of burglary in the third degree, grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life for the burglary and larceny convictions and one year for the possession of stolen property conviction, reversed, on the law, the counts of the indictment charging grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree dismissed, and the matter remanded for a new trial on burglary in the third degree with the submission of larceny and trespass in the third degree as lesser included offenses, and on the lesser counts in the indictment charging petit larceny and criminal possession of stolen property in the fifth degree, and a new Sandoval hearing directed.

At 10:00 p.m. the night of December 22, 1991 Father Salvas of the Church of the Immaculate Conception heard an alarm go off. Moments later, Father Camillus, who was also the pastor, came to Father Salvas' monastery door and told him that someone was in the church. The two men proceeded down the stairs that connect their monastery to the church. Approximately 30 seconds after the alarm sounded, Father Camillus deactivated it and opened the door to the church.

In the rear chapel, which was used only by the friars and the choir and was off-limits to the public, Father Salvas saw defendant who was walking from the chapel to the sacristy ¹ and was clutching the computer synthesizer that was used with the church's keyboard to create music at the masses.

The police arrived at the church about 3 minutes after the alarm had sounded. In the rear chapel, they found defendant lying under a pew clutching the synthesizer in his arms.

The officers found no signs of forced entry. The poor boxes and the offering boxes for votive candles had been emptied before the church was closed and, likewise, showed no signs of recent forced entry. There was no evidence that any of the incense holders, chalices, holy vessels or other precious objects had been tampered with or disturbed.

Father Salvas testified that defendant lacked permission or authority to be in the church at the time he was discovered and similarly did not have permission to take the synthesizer. As vicar and custodian of the church in the rector's absence, Father Salvas testified that the synthesizer had an approximate value of $300 to $500 and that he had seen it the day prior to his testimony in the rear chapel.

The People failed to establish defendant's guilt of grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree because they offered inadequate proof of the value of the stolen synthesizer.

Under the applicable statutes, "A person is guilty of grand larceny in the fourth degree when he steals property and when * * *

9. The property consists of a scroll, religious vestment, vessel or other item of property having a value of at least one hundred dollars kept for or used in connection with religious worship in any building or structure used as a place of religious worship by a religious corporation, as incorporated under the religious corporations law or the education law." PL 155.30(9)

Similarly, "A person is guilty of criminal possession of stolen property in the fourth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when * * *

6. The property consists of a scroll, religious vestment, vessel or other item of property having a value of at least one hundred dollars kept for or used in connection with religious worship in any building or structure used as a place of religious worship by a religious corporation, as incorporated under the religious corporations law or the education law." PL 165.45(6)

The Court of Appeals has unequivocally held that "a victim must provide a basis of knowledge for his statement of value before it can be accepted as legally sufficient evidence of such value". A conclusory statement is insufficient to prove current value. (People v. Lopez, 79 N.Y.2d 402, 404, 583 N.Y.S.2d 356, 592 N.E.2d 1360). Likewise, a "rough estimate" without evidence of its basis is insufficient. (People v. Selassie, 166 A.D.2d 358, 359, 561 N.Y.S.2d 24, lv. denied, 77 N.Y.2d 911, 569 N.Y.S.2d 943, 572 N.E.2d 626). Indeed, even evidence of the original purchase price, without more, will not satisfy the People's burden. (People v. Batista, 141 A.D.2d 654, 654-655, 529 N.Y.S.2d 549).

Here, the prosecutor asked Father Salvas, "[D]o you know the approximate value of that computer portion of the keyboard?" He responded, "Only approximate. Between three and $500".

The People failed to show any basis for Father Salvas' estimate as to the value of the synthesizer. They did not establish the purchase price or replacement price nor its age or condition at the time of the theft. (see, People v. Bernard, 123 A.D.2d 324, 506 N.Y.S.2d 281, lv. denied 69 N.Y.2d 708, 512 N.Y.S.2d 1034, 504 N.E.2d 402). They offered no proof that Father Salvas had any familiarity with this synthesizer or special knowledge of synthesizers in general. Although the statutory threshold is only $100, it cannot be assumed that any synthesizer, of unknown age, price, and condition, must be worth $100.

Further, the trial court committed reversible error when it refused, based on the evidence adduced, to charge criminal trespass in the third degree as a lesser included offense of burglary in the third degree.

The evidence established that defendant, a homeless man without a coat, entered the Church of the Immaculate Conception at some time on December 22, 1991. The church was locked at 8:30 p.m. following mass. At 10:00 p.m. defendant set off the alarm. There was no evidence of forced entry and none of the poor boxes or valuable religious articles were tampered with. When defendant was discovered, he was clutching a synthesizer that was used with a keyboard to provide music during masses. Defense counsel argued that defendant merely remained in the church after mass in order to keep warm. In order to sustain their burden of proof of third-degree burglary, the People had to establish, beyond a reasonable doubt, that "defendant had the requisite intent to commit a crime on the premises contemporaneous with either an unlawful entry or an unlawful remaining". (People v. Jones, 184...