Judges： Doerr, Pine
Filed Date： 4/14/1993
Status： Precedential
Modified Date： 10/31/2024
We dissent. In our view, the People’s proof sufficiently established that the replacement value of the stolen items was at least $5,600. The expert for the People and the expert for defendant agreed that used gravestones have no market value. Where stolen merchandise has no ascertainable market value, its value is based upon "the cost of replacement of the property within a reasonable time after the crime” (Penal Law § 155.20 [1]). We disagree with the conclusion reached by the majority that the actual condition of the item must be taken into consideration when determining replacement value. When replacement value is used, the condition of the item in the hands of the owner is not considered. "Since replacement value only comes into play where there is no market at all for the secondhand item, depreciation does not affect the impact of the wrong upon the owner who can only turn to the retail seller to make good his loss” (People v Vientos, 164 AD2d 122, 125, affd 79 NY2d 771; see also, People v Corbett, 129 AD2d 433, 436 [Sandler, J., dissenting], lv denied 70 NY2d 870). It should be no defense that a wrongdoer relied "upon the poor condition of the stolen item to mitigate his criminal liability; if there is no market he takes the subject of the theft as he finds it with all the risks, including ultimate replacement valuation, attendant thereto” (People v Vientos, supra, at 126-127). Although the condition of the gravestones stolen by defendant had deteriorated over time, the gravestones were still performing the function of marking gravesites. The families of the deceased persons whose graves were now unmarked would have no choice but to turn to the retail market to purchase suitable replacement headstones, at a cost of $5,000 and $600 to $700. That is the