SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

556 

KA 08-02239 

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CRAIG A. HUNTSMAN, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT. 

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Ontario County Court (Craig J.

Doran, J.), rendered October 3, 2008. The judgment convicted

defendant, upon a jury verdict, of criminal mischief in the fourth

degree (two counts), criminal mischief in the second degree,

aggravated harassment in the second degree (four counts), burglary in

the second degree, grand larceny in the fourth degree and criminal

contempt in the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified as a matter of discretion in the interest of

justice and on the law by reducing the conviction of grand larceny in

the fourth degree (Penal Law § 155.30 [1]) under count 11 of the

indictment to petit larceny (§ 155.25) and vacating the sentence

imposed on that count, and by reducing the conviction of criminal

contempt in the first degree (§ 215.51 [d]) under count 12 of the

indictment to criminal contempt in the second degree (§ 215.50 [3])

and vacating the sentence imposed on that count and as modified the

judgment is affirmed, and the matter is remitted to Ontario County

Court, for sentencing on the conviction of petit larceny and criminal

contempt in the second degree.

Memorandum: On appeal from a judgment convicting him following a

jury trial of 10 separate offenses stemming from multiple incidents,

defendant contends, inter alia, that misconduct on the part of the

prosecutor, Assistant District Attorney Jeffrey L. Taylor, requires

reversal. Although defense counsel failed to object to any of the

alleged acts of misconduct and thus failed to preserve defendant’s

present contention for our review (see People v Paul, 78 AD3d 1684,

1684-1685, lv denied 16 NY3d 834), we are nevertheless compelled to

exercise our power to address it as a matter of discretion in the

interest of justice (see CPL 470.15 [6] [a]). This Court has

repeatedly admonished Mr. Taylor for various acts of misconduct
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KA 08-02239 

(People v Wildrick, 83 AD3d 1455, 1458, lv denied 17 NY3d 803; People

v Morrice, 61 AD3d 1390, 1391-1392; People v Carter, 31 AD3d 1167,

1169), yet the record on this appeal establishes that his misconduct

has continued. We again admonish Mr. Taylor and remind him that

prosecutors have “special responsibilities . . . to safeguard the

integrity of criminal proceedings and fairness in the criminal

process” (People v Santorelli, 95 NY2d 412, 421). With respect to the

trial at issue on this appeal, however, we “cannot say that his

[mis]conduct . . . jeopardize[d] the fairness of the trial” (People v

Johnson, 62 AD2d 555, 560, affd 47 NY2d 785, cert denied 444 US 857;

see People v Alicea, 37 NY2d 601, 603; Paul, 78 AD3d at 1685).

We reject defendant’s further contention that he was denied

effective assistance of counsel. Viewing the evidence, the law and

the circumstances of this case, in totality and as of the time of the

representation, we conclude on the record before us on this appeal

that defendant received meaningful representation (see generally

People v Flores, 84 NY2d 184, 186-187; People v Baldi, 54 NY2d 137,

147). Defense counsel investigated the allegations and presented a

detailed alibi notice. He made numerous pretrial motions, including

one for severance. He conceded counts for which the evidence was

unassailable, but thoroughly defended against counts for which there

was questionable evidence on the issue of identification. As a

result, defendant was acquitted of three charges.

We agree with defendant that County Court erred in admitting his

cell phone records in evidence. They were neither municipal records

nor medical records, and thus they were not self-authenticating under

CPLR 4518 (c) (see People ex rel. Saafir v Mantello, 163 AD2d 824,

825). Furthermore, the records were not “so patently trustworthy as

to be self-authenticating” (People v Kennedy, 68 NY2d 569, 577 n 4). 

Because the People otherwise failed to present a foundation for the

admission of the cell phone records under CPLR 4518 (a), they should

have been excluded (see People v Ramos, 13 NY3d 914, 914-915). We

conclude, however, that any error in the admission of those records is

harmless because the evidence of guilt is overwhelming and there is no

significant probability that the error infected the verdict (see

People v Crimmins, 36 NY2d 230, 241-242). 

Defendant failed to preserve for our review his further

contention that the court erred in admitting in evidence documentation

related to repair work that was performed on the complainant’s vehicle

(see People v Bell, 286 AD2d 443). We decline to exercise our power

to address that contention as a matter of discretion in the interest

of justice (see CPL 470.15 [6] [a]).

With respect to the second count of the indictment, charging him

with criminal mischief in the second degree (Penal Law § 145.10),

defendant contends that the evidence is legally insufficient to

establish that the damage to the complainant’s vehicle exceeded

$1,500. Defendant failed to preserve that contention for our review,

however, inasmuch as he did not raise it in his motion for a trial

order of dismissal (see People v Culver, 34 AD3d 1270; People v

Chacon, 11 AD3d 906, 906, lv denied 3 NY3d 755; see generally People v
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KA 08-02239 

Gray, 86 NY2d 10, 19). Viewing the evidence in light of the elements

of the crime as charged to the jury (see People v Danielson, 9 NY3d

342, 349), we reject defendant’s further contentions that the verdict

on that count is against the weight of the evidence (see generally

People v Bleakley, 69 NY2d 490, 495) and that he was entitled to an

instruction on a lesser included offense (see generally People v

Glover, 57 NY2d 61, 63-64). There is no reasonable view of the

evidence that would have supported a finding that the amount of the

repairs to the complainant’s vehicle was less than the statutory

threshold such that he committed the lesser but not the greater

offense.

With respect to the 11th and 12th counts of the indictment,

charging defendant with grand larceny in the fourth degree and

criminal contempt in the first degree, defendant contends that the

evidence is legally insufficient to establish the value of the items

that were stolen and damaged. Even assuming, arguendo, that defendant

failed to preserve those contentions for our review (see generally

Gray, 86 NY2d at 19), we would nevertheless exercise our power to

address them as a matter of discretion in the interest of justice (see

CPL 470.15 [6] [a]; People v Avino, 34 AD3d 1251, 1252). We agree

with defendant that the evidence on the monetary value of the items

allegedly stolen and damaged is legally insufficient to support the

conviction of those crimes.

The sole evidence concerning the value of the items that were

allegedly stolen was the testimony of the complainant, who estimated

that the value of the two family rings that were stolen was “probably

over 1500 [sic] to $2,000.” With respect to the clothing and other

unidentified items that were taken, the complainant testified that the

value of those items was “[a]t least 3500.” Indeed, we note that an

officer investigating the burglary testified that the complainant had

informed him that the jewelry that was taken “had very sentimental

value to her but little monetary value. The only other items missing

were her jeans and panties.” It is well established that 

“ ‘[c]onclusory statements and rough estimates of value are not

sufficient’ ” to establish the value of a stolen item under Penal Law

§ 155.20 (1) (People v Pallagi, 91 AD3d 1266, 1269; see People v

Smith, 289 AD2d 1056, 1058-1059, lv denied 98 NY2d 641; see generally

People v Lopez, 79 NY2d 402, 404-405).

We therefore modify the judgment by reducing the conviction under

count 11 to petit larceny (see CPL 470.15 [2] [a]), and we remit the

matter to County Court for sentencing on that conviction (see Avino,

34 AD3d at 1254; Smith, 289 AD2d at 1058). Based on our resolution of

this issue, we do not address defendant’s alternative contentions

related to count 11. 

With respect to count 12, the only evidence that the damage to

the complainant’s residence exceeded the monetary threshold required

for criminal contempt in the first degree under Penal Law § 215.51

(d), was the testimony of a police investigator who stated that, based

on his training and experience, the total amount of damage was

“[p]robably around $500.” “[T]he witness’[s] general approximation of
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KA 08-02239 

the cost of repairing or replacing various property items was

insufficient to establish the amount of damage” (People v Brantley,

186 AD2d 1036, 1036, lv denied 81 NY2d 785; see People v Quigley, 70

AD3d 1411, 1412; People v Jackson, 269 AD2d 867, lv denied 95 NY2d

798). We therefore modify the judgment by reducing that conviction to

criminal contempt in the second degree (§ 215.50 [3]), for which no

proof of value is required (see Quigley, 70 AD3d at 1412), and we

remit the matter to County Court for sentencing on that conviction as

well. Based on our resolution of this issue, we do not address

defendant’s alternative contention related to count 12.

Entered: June 8, 2012 Frances E. Cafarell

Clerk of the Court