People v. Pluff

Jul 13, 1995
Versions:217 A.D.2d 744
629 N.Y.S.2d 333
1995 N.Y. App. Div. LEXIS 7745
Casey, J.

Appeal from a judgment of the County Court of Rensselaer County (Harvey, J.), rendered October 21, 1993, upon a verdict convicting defendant of the crime of criminal mischief in the third degree. In order to convict defendant of the crime of criminal mischief in the third degree, which arose out of an indictment charging arson in the third degree and criminal mischief in the second degree, the burden was on the People to prove beyond a reasonable doubt that the damage to the victim’s property exceeded $250 (see, Penal Law § 145.05). The People did not offer proof of the monetary amount of damage to the property. Conclusory statements of damage to the property without *745support for the valuation have been held insufficient (see, People v Lopez, 79 NY2d 402). Inasmuch as no proof of the monetary amount of damage to the property was addressed, the conviction for criminal mischief in the third degree cannot stand (see, People v David, 133 AD2d 277). The evidence, however, is sufficient to support the jury’s determination that defendant intentionally damaged the property of another. Accordingly, defendant is guilty of criminal mischief in the fourth degree under Penal Law § 145.00 (1), which requires no monetary element (see, People v David, supra, at 279). Defendant’s other claims have been considered and found to be lacking in merit. As modified, the judgment of conviction should be affirmed and the matter remitted to County Court for resentencing.

Mikoll, Mercure and Peters, JJ., concur; Cardona, P. J., not taking part. Ordered that the judgment is modified, on the law, by reducing defendant’s conviction of criminal mischief in the third degree to criminal mischief in the fourth degree; matter remitted to the County Court of Rensselaer County for resentencing; and, as so modified, affirmed.