People v. Vientos

OPINION OF THE COURT Wallach, J. The evidence at a Huntley hearing established that at 8:30 a.m., on April 24, 1987 police officers observed defendant and his codefendants loading plastic garbage bags either into, or out of, the trunk of a car. A computer monitor, which had "P.S. 192” written on top, protruded from one of the garbage bags. One officer testified that about one-half hour earlier he had heard a radio run concerning a burglary at P.S. 192, which was four blocks away. Upon inquiry, a codefendant claimed that they had purchased the computer equipment from a "crack head”. The defendants were arrested and advised of their rights at some point between arrest and arrival at the precinct. At the precinct, the defendants talked among themselves. After again being advised of his rights, [124] defendant Vientos was interviewed by a detective about IV2 hours after his arrest. Defendant told the detective that when he and his companions had been playing basketball around midnight, they were approached by two Hispanic males who offered to sell them computer parts, which the pair admitted were from a school, for $50. When police stopped them the following morning, the buyers were engaged in moving the equipment so purchased into defendant’s apartment. At trial, expert testimony was adduced to show that there was no resale market for the particular brand of computer equipment. Further, if the school were to replace the old equipment with new, the cost would be in excess of $1,000. The cost to anyone else who undertook to purchase comparable, used equipment, could not be ascertained, mainly because no market in such secondhand equipment existed. School officials testified that the equipment was only two years old, and in good condition. In order to sustain this conviction for criminal possession of stolen property in the fourth degree, the People were required to prove beyond a reasonable doubt that the "value” of the computer equipment exceeded $1,000 (Penal Law § 165.45 [1]). Penal Law § 155.20 (1) provides that "value means 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.” Thus, the evidence furnished by the People’s expert, Raymond Navarette, as to the cost to the school of replacing the stolen equipment was competent to establish the value element of the crime, since the predicate for such evidence (nonascertainability of any market value) had also been furnished by him. Under these circumstances, the trial court’s instructions on this aspect of the case were correct, in that it advised the jury to consider market value in April 1987 first, and only if they concluded that such was unascertainable, could they consider replacement value, and that to convict they would have to conclude that this alternative measure of value exceeded $1,000. Our decision in People v Corbett (129 AD2d 433) upon which defendant relies on appeal, is entirely distinguishable. Corbett was convicted of possessing a public pay telephone with its receiver missing which had been ripped from the wall of a restaurant the previous day. In that case "the only evidence on that issue was the subjective opinion of the People’s expert [125] that a telephone without a receiver has no value.” (People v Corbett, supra, at 435.) Since an essential element of Corbett’s conviction for criminal possession of stolen property in the second degree as then enacted was value in excess of $250, we reduced the conviction to the third degree misdemeanor level. On this record defendant is not entitled to similar relief. Furthermore, it was not necessary for the People’s evidence upon the value of the computer equipment to address its state of depreciation, nor for the court to instruct on this issue. Assuming that defendant’s motion for a trial order of dismissal was sufficient to preserve this issue (but see, People v Burke, 72 NY2d 833; People v Bynum, 70 NY2d 858), we would note that as a general rule the depreciation undergone by personal property in the hands of the owner before its criminal asportation or prior to its receipt by the criminal receiver is relevant only where the People are prosecuting on the theory of market value (as they are bound to do if there is a market value), and the depreciation is directly relevant to the reduced price that the depreciated chattel could command in that very same market (People v Harold, 22 NY2d 443 [pump damaged by amateur installation efforts]; People v Rivera, 114 AD2d 305 [secondhand stolen car in damaged condition]; People v Medina, 111 AD2d 653, appeal dismissed 67 NY2d 644 [broken up jewelry and watch parts]). 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. This recognition of economic reality was precisely the point of the 1965 legislative recodification of the Penal Law when "cost of replacement” was added to Penal Law § 155.20 as an alternative to market value when the latter "cannot be satisfactorily ascertained”. In our view, the dissent fails to appreciate the distinction between obsolescence and depreciation. Where, as here, we are dealing with a computer, a rapid advance in the state of the art may well render it unmarketable even if its physical condition is "depreciated” only by normal wear and tear. Such nonmarketability arises not from depreciation in either the physical or accounting sense, but by the circumstance that any market for the item has simply evaporated due to technological development. Under these circumstances the legislative amendment contemplates that the real injury to the owner of the computer is not to be measured by any artificial computation of depreciation, but rather by the "value” he must [126] expend to make himself whole, i.e., "the cost of replacement”. Depreciation, in this situation, is simply irrelevant. If defendant would assert the existence of a market, it is his burden to come forward with evidence to that effect; suffice to say no such showing was even attempted here. Contrary to the dissent, this burden allocation does not provide "a somewhat astounding example of impermissible burden shifting” any more than would occur if the People were to offer evidence in a run-of-the-mill market value case that the stolen chattel was worth $1,000, and the defendant undertook to contest that proof with evidence that the value was in fact $500. The imposition upon a defendant of the burden to come forward with proof in mitigation of criminal liability, and even to discharge that burden, if at all, by a preponderance of the credible evidence is constitutionally acceptable (see, People v Patterson, 39 NY2d 288), as for example when a prima facie case of robbery in the first degree is made out with a showing that defendant displayed "what appears to be a pistol * * * or other firearm” but the defendant is permitted to reduce the grade of the offense if he can show the weapon was unloaded or incapable of discharging a shot (Penal Law § 160.15 [4]). Similarly, in a homicide prosecution the defendant is permitted to prove that he "acted under the influence of extreme emotional disturbance” to reduce the grade of the offense from murder to manslaughter (Penal Law § 125.25 [1] [a]). Here, the People established through the competent testimony of their expert (1) that there was no market, and hence no market value, for the stolen computer monitor, and (2) the cost of replacement to its owner. The People’s proof of these statutory elements did not cast any burden on defendant; while he was free to controvert any aspect of this evidence without the concomitant burden created by any statute providing an affirmative defense, he was under no obligation to do so, and his "burden”, if indeed it can be called that at all, would be simply to raise a reasonable doubt on the issue. Nothing in People v Harold (supra) serves to undermine the validity of this conviction. Harold involved a new water pump purchased for $124 with a clear market value, albeit diminished by physical abuse resulting from the owner’s inept mechanical handling. Harold sheds no light on the proper valuation procedure pertinent to a stolen chattel in a criminal prosecution for which no market exists. And, of course, it does not avail the wrongdoer (and he does not do so here) to complain that he was duped into reliance upon the poor [127] 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. We find no error in the introduction of defendant’s statement to the detective, notwithstanding the suppression of a prior statement to arresting police an hour and a half earlier. There was a "definite, pronounced break in the interrogation” (cf., People v Chapple, 38 NY2d 112, 115; cf., People v Torres, 143 AD2d 582, 586), which was occasioned by a sufficient lapse of time, and interrogation by a different officer, so that the second introduced statement was not tainted by the shortcomings that led to suppression of the first, nor is there a basis for concluding that the earlier statement in any way "locked-in” defendant with respect to the contents of the second statement. We have examined defendant’s remaining contentions and find them to be meritless. Accordingly, the judgment, Supreme Court, New York County (Rena Uviller, J.), rendered October 29, 1987, convicting defendant after a jury trial of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [1]), for which he was sentenced to an indeterminate term of imprisonment of lYs to 4 years, to run consecutively to a prior 2Vá-to-7-year prison sentence, should be affirmed.