People v. Irrizari

• Decision Date: 08 January 1959
• Citation: 182 N.Y.S.2d 361,156 N.E.2d 69,5 N.Y.2d 142
• Parties: , 156 N.E.2d 69 PEOPLE of the State of New York, Respondent, v. Gladys IRRIZARI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 361

182 N.Y.S.2d 361

5 N.Y.2d 142, 156 N.E.2d 69

PEOPLE of the State of New York, Respondent, v. Gladys IRRIZARI, Appellant.

Court of Appeals of New York.

Jan. 8, 1959.

Maurice Edelbaum and Chester E. Kleinberg, New York City, for appellant.

Frank A. Gulotta, Dist. Atty., Mineola (Henry P. De Vine, Mineola, of counsel), for respondent.

FULD, Judge.

On August 17, 1955, wearing apparel was stolen from the stores of B. Altman & Co., Lord & Taylor and Best & Co., all located in Manhasset, Long Island. The defendant was charged, in an indictment containing three counts, with grand larceny in the second degree, the theft from each store being the subject of a different count in recognition of the manifest fact that each taking constituted a different larceny. The defendant actually admitted that she had stolen the clothing from Altman's and, although she denied complicity in the other thefts, the evidence establishes almost beyond all doubt that she was equally guilty of the takings from Lord & Taylor's and Best's as well, and the jury returned a verdict of guilt on each count. Sentences imposed in connection with each count were to run concurrently.

Of the several points advanced by the defendant, all of which have been considered, only one, that involving the value of the stolen articles, merits discussion. The evidence on the subject was fairly brief. The wholesale price of each of the two suits stolen from Altman's was $57, the retail price $95. Of the four suits taken from Lord & Taylor's, the wholesale cost of one was $57, its retail price $95; each of two others had a wholesale price of $63 and a retail price of $110; and the fourth was priced at $69 wholesale and $125 retail. Of each of two of the items stolen from Best's the wholesale cost was $39,95 and of the third $35; the respective retail prices for these articles were $69.95 and.$59.95.

The trial court, after nothing that the dividing line between grand and petit larceny was $100, told the jury that the defendant could be convicted of grand larceny in the second degree only if the value of the property stolen exceeded that sum. As to the meaning of 'value,' the court charged that 'the market value of the thing stolen is deemed its value' and that such market value was to be determined 'by considering what that garment would bring on the market under selling circumstances and conditions similar to those of the owners in this case.' And, added the court, in arriving at their conclusion, the jurors were to consider the 'wholesale value of the garments * * * the prices paid by the owners, * * * the price (sic) at which the owners sold similar garments, * * * the price (sic) at which owners similarly situated under similar circumstances and under similar conditions sold similar garments, and also * * * prices ordinarily paid by customers for similar garments.' As is evident, the court thus permitted the jury to take into account both the wholesale price, that is, what the victim store paid for the articles, and the retail price, that is, what the store would have realized from their sale. If it was improper for the jury to consider retail price, the defendant has a grievance, for such price was considerably higher than the amount paid by the store to its wholesaler; had the jury been instructed that wholesale price was the only item to be considered in arriving at value, it might have concluded though, we note, it would have been contrary to the evidence that the goods were worth less than $100.

'In every case not otherwise regulated by statute,' section 1305 of the Penal Law, Consol.Laws, c. 40 recites, 'the market value of the thing stolen is deemed its value.' The question for resolution and it has not heretofore been decided by this court (see People v. Rupoli, 303 N.Y. 595, 597, 105 N.E.2d 480) concerns the meaning of the term 'market value': where the theft is from a department store, does it singify value in the retail market or, as the defendant urges, the cost of replacement or wholesale value? In other words, is the market value to be determined by the value in the market in which the thief would have had to purchase the goods or the value in the market in which the owner would have had to replace them?

In addition to section 1305, there are two other provisions concerned with the value of stolen articles, and from a consideration of them a clear and definite legislative scheme emerges. Sction 1303 of the Penal Law defines the value of a stolen evidence of debt as the amount 'due' upon it at the time of the theft and section 1304, the value of a stolen passage ticket as the 'price' at which it 'is usually sold'; if, therefore, a thief steals tickets from a railroad company, their value will be not their replacement cost to the...