concurs in part and dissents in part, and votes to modify the judgment, on the law, by reducing the defendant’s conviction of grand larceny in the fourth degree to petit larceny, and vacating the sentence imposed on that count, and as so modified, to affirm the judgment, with the following memorandum: The defendant stands convicted of grand larceny in the fourth degree (Penal Law § 155.30 [1]) relating to three instances of shoplifting from a Home Depot store occurring on August 5, 2012, August 13, 2012, and August 20, 2012, respectively. His conviction is based upon a theory that the aggregate monetary value of the items stolen on those three occasions exceeds $1,000.
*1072At trial, a Home Depot asset protection specialist testified that on August 5, 2012, she was walking the floor of the subject store and saw the defendant near the power tools. The defendant selected certain power tools, placed them in a shopping cart and then proceeded to the back of the store, and exited through an emergency door by the lumber area. He put the merchandise inside a gray minivan with a black hood, which was waiting with a driver, entered the minivan, and left the scene. The asset protection specialist testified that the total value of the items stolen was approximately $940.
On August 14, 2012, the same asset protection specialist arrived at work and discovered that the zip tie on the emergency door in the garden area had been cut. She reviewed the surveillance videotape footage for the previous day—August 13, 2012—and then went to the sales floor to check a mobile scanning device, which indicated that two Dyson vacuums, a Dewalt power tool drill set, a Rigid power tool, and a Milwaukee power tool were missing from the shelves.
The surveillance videotapes of the main entrance and the rear garden exit from August 13, 2012, were played for the jury. The asset protection specialist identified the defendant on the videotapes. The defendant exited from the garden area and loaded the merchandise into what appeared to be same gray minivan that the defendant used on August 5, 2012. She identified the items stolen as the same Dyson vacuums, Dewalt power tool drill set, Rigid power tool, and Milwaukee power tool that were missing from the shelves. She testified that she recognized the items from the appearance of the boxes loaded into the minivan. An observation of the videotape reveals that the appearance of the boxes on the videotapes is barely visible. The asset protection specialist acknowledged that she could not read any lettering on the boxes and had to identify the boxes by their colors, which were not distinctive. After refreshing her recollection, she testified that the Dyson vacuums sold for $499, the Dewalt power tool drill set sold for $299, the Rigid power tool sold for $499, the Milwaukee power tool sold for $259.
On the evening of August 20, 2012, another asset protection specialist was conducting surveillance on the floor when he saw the defendant in the power tool area. The defendant pushed on the back emergency exit door, but never left the store. He was apprehended with a Dewalt drill priced at $199, a Makita drill priced at $279, and two Milwaukee drills priced at $259 each, totaling $996 in value.
The defendant was convicted of grand larceny in the fourth *1073degree (Penal Law § 155.30 [1]) as a lesser included offense of grand larceny in the third degree, based upon the theory that the value of the property exceeded $1,000. He was also convicted of criminal possession of stolen property in the fifth degree (Penal Law § 165.40), which does not require proof of the monetary value of the property.
A primary issue in this case is whether the value of property shoplifted from Home Depot on the three separate occasions may be aggregated to raise of level of the defendant’s crime from petit larceny to grand larceny based upon “a single intent, carried out in successive stages” (People v Rossi, 5 NY2d 396, 401 [1959]). This concept was first enunciated by the Court of Appeals in People v Cox (286 NY 137, 141 [1941]), which held that, “where property is stolen from the same owner and from the same place in a series of acts, those acts constitute a single larceny regardless of the time elapsing between them, if the successive takings be pursuant to a single intent and design and in execution of a common fraudulent scheme.” The taking in that case involved stealing nickel subway fares pursuant to a “general fraudulent design which was created before the misappropriations began and continued throughout the entire period” (id. at 143). The Court noted that “distinct larcenies coincident solely in method, place or time” would not be enough (id.). Likewise, People v Rossi (5 NY2d 396 [1959]) involved a fraudulent scheme to steal money from a health insurer by submitting false claims.
In People v Seymour (77 AD3d 976, 980 [2010]), this Court ruled that the proof of successive thefts of merchandise from same store (also Home Depot) was insufficient for aggregation, “as there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud,” which was defined as larceny by false pretenses, false promise, or embezzlement (see People v Perry, 114 AD3d 1282 [2014] [pension fraud]; People v Barry, 46 AD3d 1340 [2007] [embezzlement]; People v Tighe, 2 AD3d 1364 [2003] [larceny by false pretenses and false promise]; People v Bastian, 294 AD2d 882 [2002] [larceny by false promise]; People v Rosich, 170 AD2d 703 [1991] [Medicaid fraud]; People v Lofton, 73 Misc. 2d 285 [Crim Ct, NY County 1973] [larceny by false pretenses]).
The instant case involves shoplifting as opposed to a scheme to defraud. In support of the claim that the value of goods stolen in separate shoplifting incidents which do not involve a scheme to defraud may be aggregated, the majority cites People v Daghita (301 NY 223 [1950]). In that case, the Court of Appeals upheld the defendant’s conviction of grand larceny aris*1074ing from his theft of a considerable quantity of merchandise over a period of time from the same store. The defendant, a policeman, obtained access to the store at night with the aid of his accomplice, the night watchman at the store, and on all but one occasion used the authority of his policeman’s uniform to aid in the theft (see People v Daghita, 276 App Div 20 [1949], mod 301 NY 223 [1950]). In effect, the defendant and the night watchman were acting in concert to embezzle merchandise from the night watchman’s employer, aided by the defendant’s false pretense that he was acting in his capacity as a policeman. People v Henderson (163 AD2d 888 [1990]), which is also cited by the majority, involved a fraudulent scheme whereby an accomplice provided the defendant with fraudulent sales receipts for the items stolen.
In the instant case, which involved successive trespassory takings, there was no evidence of a fraudulent scheme which would permit aggregation. Conceivably a single ongoing intent could be established without evidence of a fraudulent scheme, if there is other evidence of a single plan. However, in this case there is no evidence of a single plan. The fact that the defendant went back to the same Home Depot was not evidence that when he went there the first time, on August 5, 2012, or the second time, on August 13, 2012, he planned to do so on subsequent occasions. Each time the defendant succeeded, he may have formed a new intent to return, because he succeeded.
Further, the evidence of the value of the items taken on August 13, 2012, which the People claim exceeds the $1,000 threshold, is insufficient. The testimony as to the value of the items stolen was based upon testimony as to what items were missing from the store’s shelves—not what items were taken by the defendant. The store’s asset protection specialist attempted to identify the items stolen by the defendant by viewing boxes which are barely visible on a videotape of the theft. She acknowledged that she could not read any lettering on the boxes and had to identify the boxes by their colors, which were not distinctive.
Accordingly, I would modify the defendant’s conviction of grand larceny in the fourth degree to petit larceny, and vacate the sentence imposed on that count. Since the defendant has already served the maximum sentence allowed for the class A misdemeanor of petit larceny, we would need not remit for resentencing on that count (see People v McKinney, 91 AD3d 1300 [2012]).