Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered July 20, 2011. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree, grand larceny in the third degree, criminal possession of a forged instrument in the second degree and criminal possession of a controlled substance in the seventh degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and as a matter of discretion in the interest of justice, a new trial is granted on counts one and three of the indictment, and counts two and four of the indictment are dismissed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2]), grand larceny in the third degree (former § 155.35), criminal possession of a forged instrument in the second degree (§ 170.25), and criminal possession of a controlled substance in the seventh degree (§ 220.03). Defendant was
On this appeal, defendant again contends that reversal is warranted based upon prosecutorial misconduct on summation, and we agree. Despite our prior admonition on defendant’s first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper. The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction [ ],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury (see People v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21 NY3d 1017 [2013]; People v Lopez, 96 AD3d 1621, 1622 [2012], lv denied 19 NY3d 998 [2012]; People v Spann, 82 AD3d 1013, 1015 [2011]). In one of the more troubling passages in her summation, the prosecutor stated, “You are here for the People of the State of New York versus [defendant] . . . It is not about who isn’t sitting at the defense table, it is about who is. Are you buying it? Because that’s what they’re selling. Theories disguised as arguments and posturing as evidence. And I’m not suggesting the defendant has the burden of proving anything because the burden rests with the People, but by the same token, it doesn’t give counsel license to make stuff up and pretend that it’s evidence. They all have something in common. These theories, they’re noise, they’re nonsense. They want you to be distracted. Do not be distracted.”
In addition, the prosecutor misstated the evidence and the
In light of the foregoing, we conclude that reversal is warranted based on the pervasive and at times egregious misconduct on summation, particularly in light of our previous admonition to the People in this matter (see Spann, 82 AD3d at 1015-1016; People v Wlasiuk, 32 AD3d 674, 681 [2006], lv dismissed 7 NY3d 871 [2006]). In short, as we said more than 15 years ago, “[i]t would seem, by now, unnecessary to emphasize again that the duty of the prosecutor is to honor established legal principles, not to secure a conviction by any and all means” (People v Paul, 229 AD2d 932, 933 [1996]).
We further agree with defendant that the evidence is legally insufficient to support the conviction of grand larceny in the third degree because there is insufficient evidence that the value of the stolen property exceeded $3,000 (see Penal Law former § 155.35). Although defendant failed to preserve that contention for our review (see People v Snyder, 100 AD3d 1367, 1367-1368 [2012], lv denied 21 NY3d 1010 [2013]), we nevertheless exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The value of stolen property
Here, the stolen property consisted of a PlayStation video game console, video games, DVDs, a laptop, an external hard drive, and other miscellaneous computer equipment. The victim testified that the value of the laptop was “about $2,000” and that he “had it for less than a year” before the burglary, but he did not testify as to the purchase price, the condition of the laptop, or the cost to replace it (see People v Geroyianis, 96 AD3d 1641, 1643-1644 [2012], lv denied 19 NY3d 996 [2012], reconsideration denied 19 NY3d 1102 [2012]; People v Vandenburg, 254 AD2d 532, 534 [1998], lv denied 93 NY2d 858 [1999]). As for the PlayStation, the victim testified that it cost $150 in 2005. Although a “victim is competent to supply evidence of original cost” (People v Stein, 172 AD2d 1060, 1060 [1991], lv denied 78 NY2d 975 [1991]), “evidence of the original purchase price, without more, will not satisfy the People’s burden” (People v Gonzalez, 221 AD2d 203, 204 [1995]). With respect to the remaining items of stolen property, the victim “provided only rough estimates of value . . . without setting forth any basis for his estimates . . . , and thus the evidence also is legally insufficient to establish the value of those remaining items” (Geroyianis, 96 AD3d at 1645 [internal quotation marks omitted]; see People v Sutherland, 102 AD3d 897, 898-899 [2013]). On this record, we cannot 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 $3,000 (People v Brink, 78 AD3d 1483, 1484 [2010], lv denied 16 NY3d 742 [2011], reconsideration denied 16 NY3d 828 [2011]; see Vandenburg, 254 AD2d at 534). We therefore dismiss count two of the indictment.
We likewise agree with defendant that the evidence is legally insufficient to support his conviction of criminal possession of a controlled substance in the seventh degree, as charged in the fourth count of the indictment. The indictment alleged that “on or about the 2nd day of September, 2005, [defendant] knowingly and unlawfully possessed a controlled substance, to wit:
Contrary to the further contention of defendant, however, we conclude that the evidence is legally sufficient to support the conviction of burglary in the second degree and criminal possession of a forged instrument in the second degree and, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respect to those counts is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
In light of our determination, we do not address defendant’s remaining contentions. Present — Smith, J.P., Peradotto, Garni and Lindley, JJ.