People v. Pallagi , 937 N.Y.2d 486 ( 2012 )

Scudder, P.J. (dissenting).

I respectfully dissent and would modify the respective judgments in each appeal by reducing the convictions of grand larceny in the fourth degree (Penal Law § 155.30 [1]) to petit larceny (§ 155.25; see CPL 470.15 [2] [a]), and I would remit the matters to County Court for resentencing (see CPL 470.20 [4]).

I disagree with the majority that the court erred in refusing to strike the testimony that Sashalee N. Pallagi, the defendant in appeal No. 1, stated that a friend drove the two defendants to the mall. Rather, in my view, the CPL 710.30 notices adequately set out the sum and substance of defendants’ statements and permitted them to identify those statements, which were essentially denials that they removed sensors from clothing or knew anything about the missing property (see People v Sturdevant, 74 AD3d 1491, 1492 [2010], lv denied 15 NY3d 810 [2010]). Although the notice does not contain the statement that defendants now contend was inculpatory, “[t]he statutory notice does not require a verbatim recitation of an oral statement” (People v Cooper, 158 AD2d 743, 744 [1990], revd on other grounds 78 NY2d 476 [1991]). Furthermore, the “purpose of the notice requirement is to enable defendants to challenge the voluntariness of [their] statements before trial . . . , [and thus] defendants waived [their] objection to the adequacy of the notice by making [their respective] suppression motion[s]” (Sturdevant, 74 AD3d at 1492). The fact that defendants ultimately withdrew their request for a Huntley hearing is of no moment. The CPL 710.30 notice served its purpose, i.e., it provided defendants with the opportunity to challenge the voluntariness of their respective statements. Even assuming, arguendo, that the statement in question is inculpatory, I conclude that it is not thereby rendered involuntary. Indeed, in my view, there is no basis for concluding that the court would have suppressed the statement as involuntary even in the event that the Huntley hearing had been conducted. Thus, I conclude that the court did not commit reversible error by refusing to strike the testimony on the ground that defendants did not have notice of the statement.

I agree with the majority that the evidence is legally insufficient to support the conviction of grand larceny in the fourth degree in each appeal. Thus, as noted, I would therefore modify the judgments by reducing the convictions to petit larceny (see CPL 470.15 [2] [a]), and I would remit the matters to County Court for resentencing (see CPL 470.20 [4]).

I submit, however, that the majority may not determine that the evidence supports a lesser included offense but then fail to modify the judgments by reducing the convictions to that lesser included offense (see CPL 470.15 [2] [a]). The rationale set forth by the majority for failing to do so is that the majority has determined that there is a trial error. As I previously set forth, I do not agree with the majority that there was a trial error. Nevertheless, for the reasons that follow, I submit that, if there also had been a trial error, the appropriate remedy would be to grant a new trial on the indicted charges. Indeed, in the event that a defendant raises meritorious contentions of both legal insufficiency and trial error, the corrective actions that a court is permitted by statute to implement may conflict, as is the case with the majority’s analysis. Specifically, the majority has determined both that the evidence is legally sufficient to support the lesser included offense of petit larceny, which requires modification of the judgments to convictions of petit larceny and remittal for resentencing on those convictions (see CPL 470.15 [2] [a]; 470.20 [4]), while at the same time there is a trial error, which requires reversal of the judgments and remittal for a new trial (see CPL 470.20 [1]). The conundrum faced by the majority, however, is that we may not both modify a judgment by reducing the conviction to a lesser included offense (see CPL 470.20 [2] [a]), and simultaneously grant defendant a new trial (see CPL 470.20 [1]). Based upon the Court of Appeals’ implicit holding in People v Wright (17 NY3d 643 [2011], revg 63 AD3d 1700 [2009]), I submit that, if there is a trial error that deprived defendant of a fair trial, the error deprives this Court of the authority to review a further contention that the conviction is not based upon legally sufficient evidence and to reduce the conviction to a lesser included offense. Instead, the judgment must be reversed and a new trial granted on the indictment, without regard to the legal sufficiency of the evidence.

In Wright, the Court of Appeals reversed our order in which we had, inter alia, modified a judgment convicting defendant of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) by reducing the conviction to the lesser included offense of manslaughter in the second degree (§ 125.15 [1]). On appeal from our order, the Court of Appeals determined that the trial court had erred in prohibiting defendant from introducing certain testimony, and the Court of Appeals remitted the matter to Supreme Court “for a new trial” (17 NY3d at 656). Inasmuch as the accusatory instrument charged defendant with murder, and not manslaughter, it is implicit in the decision of the Court of Appeals that the new trial was to be held on the indicted count of murder in the second degree. Had the Court intended that the trial be held on the reduced conviction of manslaughter, it necessarily would have granted the People leave to re-present the charges to another grand jury in order to obtain an accusatory instrument upon which to try defendant (see People v Gonzalez, 61 NY2d 633 [1983]). Thus, I further submit that it is also implicit in the Court’s decision that the trial error deprived this Court of the authority to review the legal sufficiency of the evidence, inasmuch as this Court’s conviction of the lesser included offense was overturned. In my view, where there is a trial error that denies defendant a fair trial, the corrective action that may properly be taken is to reverse the judgment and grant a new trial (see CPL 470.20 [1]). Here, because the majority has determined that there is a trial error, the judgments must be reversed and a new trial must be granted on the indicted counts of grand larceny (see Wright, 17 NY3d at 655-656).

Finally, in my view, the majority’s resolution of this matter violates the double jeopardy rights of defendants (see US Const 5th Amend; NY Const, art I, § 6; CPL 40.20). Although double jeopardy would not be implicated if there were an offense with which to charge defendants that was not a lesser included offense (see e.g. Matter of Suarez v Byrne, 10 NY3d 523, 538 [2008], rearg denied 11 NY3d 753 [2008]; People v Gilmore, 41 AD3d 1162 [2007], lv denied 9 NY3d 875 [2007]), upon this record, the only charge available to the People is petit larceny. That is, of course, a lesser included offense of grand larceny because “ ‘the lesser offense . . . requires no proof beyond that which is required for conviction of the greater’ ” (People v Biggs, 1 NY3d 225, 230 [2003]), and thus the People would be precluded from charging defendants again with respect to the theft of property for which they have previously been tried. Present — Scudder, PJ., Smith, Centra and Gorski, JJ.