SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

515 

KA 11-01085 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JEREL WALKER, DEFENDANT-APPELLANT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (Joseph E.

Fahey, J.), rendered January 11, 2011. The judgment convicted

defendant, upon a jury verdict, of burglary in the second degree,

grand larceny in the fourth degree (two counts), petit larceny and

criminal possession of stolen property in the fifth degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed as a matter of discretion in the interest of

justice and on the law, the fourth count of the indictment is

dismissed without prejudice to the People to file or re-present to

another grand jury any appropriate charge under that count, the sixth

count of the indictment is dismissed, and a new trial is granted on

the third, ninth and 10th counts of the indictment. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of one count each of burglary in the second degree

(Penal Law § 140.25 [2]), petit larceny (§ 155.25) and criminal

possession of stolen property in the fifth degree (§ 165.40) and two

counts of grand larceny in the fourth degree (§ 155.30 [1], [4]). We

agree with defendant that the evidence is legally insufficient to

support his conviction of grand larceny in the fourth degree under the

fourth count of the indictment because the People failed to establish

that the value of the stolen property exceeded $1,000. The evidence

with respect to the value of the jar of coins and the television set

consisted of “[c]onclusory statements and rough estimates of value[,

which] are not sufficient” to satisfy that element of the crime

(People v Loomis, 56 AD3d 1046, 1047). “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, reconsideration denied 16 NY3d

828). Nevertheless, because we further conclude that the evidence is
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KA 11-01085 

legally sufficient to support a conviction of petit larceny, we

reverse the conviction of grand larceny in the fourth degree under

Penal Law § 155.30 (1) and dismiss the fourth count of the indictment

without prejudice to the People to file or re-present to another grand

jury any appropriate charge under that count (see People v JeanPhilippe, 101 AD3d 1582, 1583; People v Pallagi, 91 AD3d 1266, 1268). 

Although defendant failed to preserve for our review his further

contention that the evidence is legally insufficient to support his

conviction of grand larceny in the fourth degree under the sixth count

of the indictment, we exercise our power to review that contention as

a matter of discretion in the interest of justice (see CPL 470.15 [6]

[a]), and we conclude that the conviction of that count is not

supported by legally sufficient evidence (see generally People v

Danielson, 9 NY3d 342, 349). The sixth count of the indictment

alleged that defendant stole a debit card issued by Bank of America to

a specified person, but the People failed to establish that such card

was stolen by defendant. We therefore reverse the remaining

conviction of grand larceny in the fourth degree and dismiss the sixth

count of the indictment. 

With respect to the remaining counts of the indictment, we agree

with defendant that County Court erred in allowing the People to

introduce evidence concerning an uncharged burglary to prove his

identity as the perpetrator of the burglary and petit larceny charged

in the indictment. The instant crime is “not so unique as to allow

admission of evidence of the [uncharged burglary] on the theory of the

similarity of the modus operandi” (People v Condon, 26 NY2d 139, 144;

see People v Mateo, 93 NY2d 327, 332). The court further erred in

admitting the testimony of a witness who identified defendant in an

out-of-court photo array procedure and thereafter identified him in

court. The People failed to satisfy their obligation pursuant to CPL

710.30 inasmuch as no statutory notice was given by the People with

respect to their intent to offer “testimony regarding an observation

of the defendant at the time or place of the commission of the offense

or upon some other occasion relevant to the case, to be given by a

witness who has previously identified him as such” (CPL 710.30 [1];

see People v Nolasco, 70 AD3d 972, 973-974). The errors in admitting

evidence of the uncharged burglary and the identification of defendant

are not harmless, considered singularly or in combination, inasmuch as

the proof of defendant’s guilt is not overwhelming, and there is a

significant probability that the jury would have acquitted defendant

had it not been for either of the errors (see generally People v

Arafet, 13 NY3d 460, 467; People v Crimmins, 36 NY2d 230, 241-242). 

We therefore reverse the conviction of burglary in the second degree,

criminal possession of stolen property in the fifth degree and petit

larceny, and we grant defendant a new trial under counts three, nine

and 10 of the indictment. 

In light of our decision, we need not address defendant’s

contention that he was denied a fair trial by prosecutorial

misconduct. We nevertheless note our disapproval of the prosecutor’s

pervasive misconduct during summation. The prosecutor inappropriately

and repeatedly vouched for the credibility of prosecution witnesses
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KA 11-01085 

(see People v Moye, 12 NY3d 743, 744), suggested that defendant was a

liar (see People v Fiori, 262 AD2d 1081, 1081), characterized

defendant’s testimony as “smoke and mirrors” (see People v Spann, 82

AD3d 1013, 1015), and otherwise improperly denigrated the defense (see

People v Grady, 40 AD3d 1368, 1374, lv denied 9 NY3d 923).

Finally, in view of our determination, we do not address

defendant’s remaining contentions.

Entered: July 11, 2014 Frances E. Cafarell

Clerk of the Court