People v. Appedu , 111 A.D.2d 761 ( 1985 )

Appeal by defendant from a judgment of the Supreme Court, Westchester County (Delaney, J.), rendered March 27,1984, convicting him of burglary in the second degree, burglary in the third degree, grand larceny in the third degree (two counts), and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reducing the conviction of grand larceny in the third degree under the fourth count of the indictment to one of petit larceny. As so modified, judgment affirmed.

The People proved beyond a reasonable doubt, as the jury found, that defendant had burglarized Z Brothers Garage and had stolen therefrom $35 in cash, a new car battery worth $60, and some tools. Mr. Zoccali testified that he had purchased the tools for $750 to $800. There was no evidence concerning when the tools were purchased, what their condition was, or what their current value or replacement cost would be. Consequently, there was insufficient evidence to establish that the defendant had stolen property having an aggregate value of over $250, a necessary prerequisite for the conviction of grand larceny in the third degree under the fourth count of the indictment (Penal Law § 155.30; see, People v Cahill, 83 AD2d 589). However, the evidence presented did establish the crime of petit larceny, and we have modified the judgment accordingly. There is no need to remit for resentence since defendant has already served the maximum time to which he could be sentenced on the petit larceny conviction (see, People v Cahill, supra).

We have considered the other points raised on appeal, and find them to be without merit. Mangano, J. P., Gibbons, Bracken and Kunzeman, JJ., concur.