People v. Vientos

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: WACHTLER
• Citation: People v. Vientos, 579 N.Y.S.2d 633, 79 N.Y.2d 771, 587 N.E.2d 271 (N.Y. 1991)
• Decision Date: 18 December 1991
• Parties: , 587 N.E.2d 271 The PEOPLE of the State of New York, Respondent, v. Edwin VIENTOS, Appellant.

Page 633

579 N.Y.S.2d 633

79 N.Y.2d 771, 587 N.E.2d 271

The PEOPLE of the State of New York, Respondent, v. Edwin VIENTOS, Appellant.

Court of Appeals of New York.

Dec. 18, 1991.

[79 N.Y.2d 772] Robert P. App and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Mary C. Farrington and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed. 164 A.D.2d 122, 561 N.Y.S.2d 443. It cannot be said as a matter of law that the People's evidence of value was insufficient. The People's expert testified that he was familiar with the retail market for Commodore computers, that the company did not sell the computers used, or authorize its dealers to do so, and that he knew of no market for used Commodore computers. The People were not required to show whether the equipment had an established value in the black market, since that standard is only applicable when the stolen items are contraband, such as drugs, which may not be sold legally (People v. Irrizari, 5 N.Y.2d 142, 145-146, 182 N.Y.S.2d 361, 156 N.E.2d 69). The expert's concession that an individual owner was free to sell used equipment to another person does not indicate the existence of a market for the used equipment, which contemplates that the sales occur with some regularity and uniformity (People v. Irrizari, supra, at 146, 182 N.Y.S.2d 361, 156 N.E.2d 69).

The statute provides that replacement cost may be used if market value "cannot be satisfactorily ascertained" (Penal Law § 155.20[1], and the testimony of the People's expert, if credited, permitted the People to use this alternative method of...