People v. Jansen

• Citation: 536 N.Y.S.2d 556,145 A.D.2d 870
• Parties: The PEOPLE of the State of New York, Respondent, v. John K. JANSEN, Appellant.
• Decision Date: 29 December 1988
• Court: New York Supreme Court Appellate Division

Page 556

536 N.Y.S.2d 556

145 A.D.2d 870

The PEOPLE of the State of New York, Respondent, v. John K. JANSEN, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 29, 1988.

Seymour Fox, P.C. (Larry P. Kivitz, of counsel), Troy, for appellant.

Sol Greenberg, Dist. Atty. (Michael J. Connolly, of counsel), Albany, for respondent.

Before WEISS, J.P., and MIKOLL, YESAWICH, HARVEY and MERCURE, JJ.

WEISS, Justice Presiding.

Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered July 1, 1987, upon a verdict convicting defendant of the crimes of criminal possession of stolen property in the second degree and criminal possession of stolen property in the third degree.

Following a jury trial, defendant was convicted of both second and third degree criminal possession of stolen property based on the taking of various clothing items from Macy's Department Store in the Town of Colonie, Albany County, on October 12, 1986. On this appeal, defendant does not controvert the fact that he knowingly possessed the stolen items. Defendant's main thesis is that the People failed to prove that the aggregate value of the goods stolen exceeded the $250 statutory threshold, mandated by Penal Law former § 165.45(1) as it then existed (see, L.1986, ch. 515, § 5, eff. Nov. 1, 1986 ). Insofar as the felony possession count is concerned, the record shows that the People valued the goods stolen at $282.50.

In his appellate brief, defendant challenges the valuation of the stolen items on several bases, none of which are persuasive. A more fundamental problem, however, has since arisen warranting further discussion. In a postargument letter to the court, defendant has asserted for the first time that the 1986 amendment to Penal Law § 165.45(1) raising the statutory felony threshold to $1,000 should apply here. Upon a retroactive application of the statute, it is clear that the evidence presented would only sustain a misdemeanor possession conviction (see, Penal Law § 165.40).

Generally, the failure to raise an issue in an appellate brief constitutes an abandonment of that issue (see, Lamphear v. State of New York, 91 A.D.2d 791, 458 N.Y.S.2d 71; Matter of Pessano, 269 App.Div. 337, 341, 55 N.Y.S.2d 786, affd., 296 N.Y. 564, 68 N.E.2d 866; 1 Newman, New York Appellate Practice § 2.08). However, this court retains authority to determine whether a defendant has been rightfully sentenced as provided by law (see, CPL 470.15; People v. Fuller, 57 N.Y.2d 152 156, 455 N.Y.S.2d 253, 441 N.E.2d 563; People v. Bourne, 139 A.D.2d 210, 212-215, 531 N.Y.S.2d 899). Where legislation has the ameliorative effect of reducing the punishment attributable to a particular offense, the lesser penalty may be imposed in all cases decided after the effective date of the amendment even where the underlying crime occurred beforehand (People v. Oliver, 1 N.Y.2d 152, 158-160, 151 N.Y.S.2d 367, 134 N.E.2d 197). Notably, a divergence of opinion has emerged concerning the character of the subject legislation. In People v. Basir, 141 A.D.2d 745, 529 N.Y.S.2d 841, lv. denied 72 N.Y.2d 915, 532 N.Y.S.2d 849, 529 N.E.2d 179), the Second Department recently concluded that the 1986 amendments to Penal Law § 155.30, redefining felony grand larceny as the theft of property exceeding $1,000 in value, were not designed for retroactive application (see, L.1986, ch. 515, § 1, eff. Nov. 1, 1986). The Fourth Department reached a contrary conclusion in People v. Behlog, 142 A.D.2d 983, 530 N.Y.S.2d 404 and extended the benefits of the amended statute retroactively.

In our view, the ameliorative nature of the amendment to Penal Law § 165.45(1) warrants a retroactive application of its provisions, notwithstanding the absence of an express legislative directive to that effect (see, People v. Oliver, supra, 1 N.Y.2d at 160, 151 N.Y.S.2d 367, 134 N.E.2d 197; cf., People v. Basir, supra, 141 A.D.2d at 746, 529 N.Y.S.2d 841). The "general object" of the amendment was clearly to reduce the punishment ascribed to particular criminal activity (see, People v. Oliver, supra, 1 N.Y.2d at 160, 151 N.Y.S.2d 367, 134 N.E.2d 197). The statutory amendment constitutes a...