SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

2 

KA 11-00745 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND GORSKI, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

SASHALEE N. PALLAGI, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

CONNORS & VILARDO, LLP, BUFFALO (TERRENCE M. CONNORS OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Ontario County Court (William F.

Kocher, J.), rendered March 2, 2011. The judgment convicted

defendant, upon a jury verdict, of grand larceny in the fourth degree. 

It is hereby ORDERED that the judgment so appealed from is

reversed on the law and the indictment is dismissed without prejudice

to the People to file any appropriate charge. 

Memorandum: In these two appeals, defendants appeal,

respectively, from judgments convicting them following a single jury

trial of grand larceny in the fourth degree (Penal Law § 155.30 [1]). 

The convictions arose from an incident in which defendants, according

to the testimony of a store loss prevention officer presented by the

People, stole numerous items of property by removing the store

security sensors and hangers from the items, and then removing the

items from the store by unknown means. Certain merchandise was

apparently never recovered. Defendants were apprehended as they left

the store, but no merchandise was recovered. 

The People served CPL 710.30 notices of their intent to offer

statements that defendants made to law enforcement officers at the

time of their arrest, although the notices indicated that defendants

made only exculpatory statements. During the trial, however, a

sheriff’s deputy testified that he asked defendant Sashalee N. Pallagi

how defendants arrived at the mall, and she replied that a friend had

given them a ride. Defendants objected, and replied in the

affirmative when County Court asked if they were moving to strike the

testimony. The court denied the motion, however, and the prosecutor

thereafter cross-examined Sashalee on that point. In addition, the

prosecutor argued during summation that the friend was part of the

scheme to steal property. 
-2- 2 

KA 11-00745 

We agree with defendants that the court erred in denying their

motion to strike. Initially, we note that the People failed to

preserve for our review their present contention that defendants’

objection was untimely (see generally People v Hunter, 17 NY3d 725,

727-728; People v Whitley, 68 AD3d 790, 791, lv denied 14 NY3d 807;

People v Garcia, 296 AD2d 509, 510). 

“Whenever the people intend to offer at a trial . . . evidence of

a statement made by a defendant to a public servant, which statement

if involuntarily made would render the evidence thereof suppressible

upon motion pursuant to subdivision three of section 710.20, . . .

they must serve upon the defendant a notice of such intention,

specifying the evidence intended to be offered” (CPL 710.30 [1]). The

People need not provide all statements verbatim, “but they must be

described sufficiently so that the defendant can intelligently

identify them” (People v Lopez, 84 NY2d 425, 428). We conclude that

the notice at issue is insufficient because it failed to provide

defendants “with notice that adequately set out the sum and substance

of [the] statements [presented by the People at trial] and permitted

[defendants] to intelligently identify them” (People v Sturdevant, 74

AD3d 1491, 1492, lv denied 15 NY3d 810; cf. People v Chanowitz, 298

AD2d 767, 768-769, lv denied 99 NY2d 613). Contrary to the People’s

further contention, the statements were not pedigree information

exempt from the notice requirement (cf. People v Rodney, 85 NY2d 289,

293). We therefore reverse the judgments. If this were the only

meritorious argument presented by defendants, we would grant a new

trial on the grand larceny charge of which they were convicted. We

also conclude for the reasons that follow, however, that defendants

are correct that the evidence is legally insufficient to support the

conviction of grand larceny and thus that a new trial on that charge

is not warranted. We therefore reverse the judgment in each appeal

and dismiss the indictments, each of which charged the respective

defendant solely with grand larceny in the fourth degree. 

Nevertheless, because we further conclude that the evidence is legally

sufficient to support a conviction of petit larceny, we dismiss the

indictments without prejudice to the People to file any appropriate

lesser charge (see generally People v Holmes, 302 AD2d 936).

As noted, defendants further contend that the evidence is legally

insufficient to support the conviction. Specifically, they contend

that it is legally insufficient to establish that they stole property,

that they took property from an owner thereof, and that the value of

the stolen property exceeded $1,000. We note at the outset that

defendants failed to preserve for our review their contention that the

evidence is legally insufficient to establish that they took property

“from an owner thereof” (Penal Law § 155.05 [1]; see People v Gray, 86

NY2d 10, 19-20). In any event, viewing the evidence in the light most

favorable to the People (see People v Contes, 60 NY2d 620, 621), we

conclude that there is legally sufficient evidence establishing that

the store’s loss prevention officer “had a possessory right which,

however limited or contingent, was superior to that of defendant[s]”

(People v Hutchinson, 56 NY2d 868, 869). 

Contrary to defendants’ further contention, there is legally
-3- 2 

KA 11-00745 

sufficient evidence establishing that they stole property. The

essential element of taking with respect to a larceny “is satisfied

where the defendant ‘exercised dominion and control over the property

for a period of time, however temporary, in a manner wholly

inconsistent with the owner’s continued rights’ ” (People v Zombo, 28

AD3d 1233, 1234, lv denied 7 NY3d 794, 797, quoting People v Jennings,

69 NY2d 103, 118). Here, the People presented evidence establishing

that defendants removed hangers and store security sensors from an

unknown number of items and then concealed the items, and that certain

items were removed from the store. Thus, the evidence is legally

sufficient to establish that defendants “exercised control wholly

inconsistent with the owner’s continued rights” (People v Olivo, 52

NY2d 309, 319). 

We agree with defendants, however, that the conviction is not

supported by legally sufficient evidence that the value of the stolen

property exceeded $1,000. The value of stolen property is “the market

value of the property at the time and place of the crime, or if such

cannot be satisfactorily ascertained, the cost of replacement of the

property within a reasonable time after the crime” (Penal Law § 155.20

[1]). The People therefore were required to establish beyond a

reasonable doubt that the value of the stolen property exceeded

$1,000. “The Court of Appeals has unequivocally held that ‘a victim

must provide a basis of knowledge for his [or her] statement of value

before it can be accepted as legally sufficient evidence of such

value’ ” (People v Gonzalez, 221 AD2d 203, 204, quoting People v

Lopez, 79 NY2d 402, 404). “Conclusory statements and rough estimates

of value are not sufficient” (People v Loomis, 56 AD3d 1046, 1047; see

People v Selassie, 166 AD2d 358, 359, lv denied 77 NY2d 911). 

Here, the sole evidence of value consisted of the testimony of a

store loss prevention officer, who indicated that three specific

missing items were valued at $49.99, $128, and $108, respectively, and

that the total value of the property taken was $2,200. In reaching

the latter value, however, the store loss prevention officer inferred

that certain property was taken based on a review of a grainy stopaction video recording of defendants’ movement in the store, and she

admitted that she could not clearly ascertain the items that were

taken. She also testified that defendants took approximately 20 items

of merchandise into the dressing room area, and that the merchandise

was not recovered. She admitted, however, that approximately 20 items

were found in the dressing room area, and the People failed to

establish that those items were not some of those allegedly taken by

defendants. Furthermore, the store loss prevention officer assigned a

minimum value to the items that she concluded were taken, based merely

upon her estimate of the minimum sale price of some of the items in

that area of the store. No further evidence was introduced with

respect to the value of any item, or with respect to the basis for her

estimated minimum sale price. “Consequently, we cannot on this record

conclude ‘that the jury ha[d] a reasonable basis for inferring, rather

than speculating, that the value of the property exceeded the

statutory threshold’ of $1,000” (People v Brink, 78 AD3d 1483, 1484,

lv denied 16 NY3d 742, rearg denied 16 NY3d 828). We therefore

conclude that the evidence is legally insufficient to establish that
-4- 2 

KA 11-00745 

the value of the property taken exceeded $1,000. The evidence is

legally sufficient, however, to establish that defendants committed

the lesser included offense of petit larceny. Moreover, viewing the

evidence in light of the elements of the crime of petit larceny (see

People v Danielson, 9 NY3d 342, 349), we conclude that a verdict

convicting defendants of that crime would not be against the weight of

the evidence (see generally People v Bleakley, 69 NY2d 490, 495). 

Absent the CPL 710.30 violation, we would modify the judgments by

reducing the convictions to that crime (see e.g. Brink, 78 AD3d at

1484). Inasmuch as the proper remedy for the CPL 710.30 violation is

a new trial, however, we dismiss the indictments without prejudice to

the People to file any appropriate charge.

In light of our determination, we do not address defendants’

contentions with respect to the sentences imposed.

All concur except SCUDDER, P.J., who dissents and votes to modify 

in accordance with the following Memorandum: 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, lv denied 15 NY3d 810). 

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, revd on other grounds 78 NY2d 476). Furthermore, the

“purpose of the notice requirement is to enable defendant[s] to

challenge the voluntariness of [their] statement[s] before trial . .

., [and thus] defendant[s] 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
-5- 2 

KA 11-00745 

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, revg 63 AD3d 1700), 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” (id. 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
-6- 2 

KA 11-00745 

Gonzalez, 61 NY2d 633). 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, rearg denied 11 NY3d 753; People v

Gilmore, 41 AD3d 1162, lv denied 9 NY3d 875), 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),

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. 

Entered: January 31, 2012 Frances E. Cafarell

Clerk of the Court