People v. Wynn

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before CASEY; YESAWICH; CASEY
• Citation: People v. Wynn, 574 N.Y.S.2d 83, 176 A.D.2d 375 (N.Y. App. Div. 1991)
• Decision Date: 12 September 1991
• Parties: The PEOPLE of the State of New York, Respondent, v. Sallie R. WYNN, Appellant.

Page 83

574 N.Y.S.2d 83

176 A.D.2d 375

The PEOPLE of the State of New York, Respondent, v. Sallie R. WYNN, Appellant.

Supreme Court, Appellate Division Third Department.

Sept. 12, 1991.

Bruce R. Bryan, Syracuse, for appellant.

James T. Hayden, Dist. Atty., Elmira, for respondent.

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

YESAWICH, Justice.

Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered March 15, 1990, upon a verdict convicting defendant of the crime of grand larceny in the fourth degree.

While on his evening break, Raymond Cook, a Sears Roebuck and Company security guard in the Arnot Mall in Chemung County, witnessed defendant and another woman take clothes from the Hit or Miss store's clothing racks and put them in plastic mauve J.C. Penney shopping bags. The women then handed two full shopping bags to two male confederates who proceeded to leave the store. When Cook began to trail the men, defendant came out of the store and warned, "[G]o, go. That man is following you." With Cook following them, the men, walking rapidly, passed through several mall stores, eventually entering Iszard's Department Store. There, Cook momentarily lost sight of them while asking an Iszard's sales representative to alert the store's security department. Suddenly, the two men, no longer carrying the shopping bags, ran past Cook. A quick search by Cook of the area the men had come from produced the shopping bags, one of which contained a multicolored dress he had seen being taken off the Hit or Miss racks. As he gave the bags to Iszard's security personnel, Cook caught sight of defendant and the other woman he had seen in the Hit or Miss store and followed them until they were ultimately apprehended by mall security and a Deputy Sheriff.

In the meantime, an Iszard's stock boy took the two J.C. Penney bags to the Iszard's store office where an Iszard's employee removed the clothing from the bags and tallied the prices on the price tags. Each price tag had a suggested retail price which was crossed out and a Hit or Miss discounted selling price. Soon after, another bag, also containing clothing from the Hit or Miss store, was discovered at Iszard's. At trial, however, the clothing from this bag was excluded from evidence.

Of defendant's arguments on appeal, three merit comment: whether County Court erred in admitting into evidence items of clothing found in the first two bags without requiring that a chain of custody be established; whether the court erred in not dismissing the indictment for insufficient proof of value of the clothing; and whether the court erred in allowing the clothing not received into evidence to be displayed in the courtroom. The prosecution having prevailed at trial, the People are entitled to the most favorable view of the evidence (see, People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288). Considering the evidence in this light, an affirmance is appropriate.

Strict proof of the chain of custody of the stolen articles was not necessary in the case at hand for these articles were not fungible (see, People v. Washington, 96 A.D.2d 996, 997, 467 N.Y.S.2d 87). "When an 'object possesses unique characteristics or markings and is not subject to material alteration which is not readily apparent', a simple identification is sufficient to warrant admission" (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310, quoting People v. Connelly, 35 N.Y.2d 171, 174, 359 N.Y.S.2d 266, 316 N.E.2d 706). Here, the clothing was specifically identifiable by its color, style and price, and was so identified at trial by a Hit or Miss store sales employee (see, People v. Joy, 107 A.D.2d 938, 484 N.Y.S.2d 351; People v. Washington, supra ). Additionally, there is credible testimony that the clothes received into evidence were those Cook had recovered and that their condition was substantially unchanged; hence, simple identification was sufficient as a foundation for introduction of this clothing into evidence (see, People v. Connelly, supra; ...