People v Markellos

[*1] People v Markellos 2020 NY Slip Op 51236(U) Decided on October 21, 2020 Supreme Court, Nassau County Schwartz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 21, 2020
Supreme Court, Nassau County

The People of the State of New York

against

James Markellos, Defendant.



1730N/2019



ADA Martha Kousiaris

Nassau County District Attorney's Office

Gregory Madey, Esq.

Attorney for Defendant

114 Old Country Road

Mineola, New York 11501
Robert A. Schwartz, J.

Defendant has been indicted on five counts of grand larceny in the third degree, six counts of grand larceny in the fourth degree, eight counts of petit larceny, one count of criminal mischief in the third degree, and six counts of criminal mischief in the fourth degree. The People allege that, between July and August 2019, defendant stole landscaping equipment and trailers from eight different landscape contractors. In a virtual conference on July 1, 2020, the parties stipulated to Wade and Huntley hearings and agreed that the court would review the sufficiency of the grand jury evidence and the supporting affidavits for the People's cell site location information (CSLI) and search warrants. On September 23, 2020, at the court's request, the People submitted written argument addressing whether the grand jury evidence regarding the value of the stolen property was sufficient to support the grand larceny charges. Defendant filed a brief response on October 13, 2020.

"In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt." People v. Bello, 92 NY2d 523, 526 (1998). Accordingly, in reviewing the sufficiency of the grand jury evidence, a court "must consider 'whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury.'" Bello, 92 NY2d at 525 (quoting People v. Jennings, 69 NY2d 103, 114 [1986]); see also People v. Castaldo, 146 AD3d 797 (2d [*2]Dept 2017). In other words, it must determine whether there was "competent evidence, which if accepted as true, would establish every element of an offense charged." CPL § 70.10(1); see also People v. Deleon, 34 NY3d 965, 966 (2019). The court is not to consider the weight or quality of the evidence; rather, as long as it permitted the grand jurors to rationally infer the defendant's guilt, the evidence was sufficient. See People v. Mills, 1 NY3d 269, 275 (2003); People v. Jensen, 86 NY2d 248, 252 (1995); People v. Wisey, 133 AD3d 799, 800 (2d Dept 2015).

Following a review of the evidence before the grand jury, the court finds that the evidence in support of counts 1, 4, 7, 11 and 15, charging defendant with third-degree grand larceny, and counts 2, 5, 8, 12, 16, and 24, charging defendant with fourth-degree grand larceny, was not legally sufficient, as the People did not establish that the value of the items stolen met the monetary thresholds for any of those charges. The People concede the deficiency as to count 15. Because that element was not met, the third and fourth-degree grand larceny charges must be dismissed.[FN1]

The Grand Jury Evidence Regarding Value

Counts One and Two: Grand Larceny in the Third and Fourth Degree on July 27, 2019

Hector Escobar, the owner of a landscaping and construction company, testified that he had twenty-eight years of experience in landscaping, including purchasing trailers and equipment. He stated that, on August 1, 2019, he learned that his trailer had been stolen. Escobar testified that he bought the trailer in 2003 for "about $10,000." When it was taken, the trailer held a ride-on lawnmower that Escobar said he bought for "$5,000," and other landscaping materials. Escobar did not testify when he purchased the mower or about the condition of the mower or the trailer. When Escobar was asked what it would cost to replace the lawnmower, he said "these days probably more." When he was asked for the "cost" of everything that was taken, he responded, "I have a total loss $10,000 minimum. . . . [B]ecause it's a used trailer at this point and used equipment. It's — there's no price on it, but —." Grand Jury Minutes (October 9, 2019) at 31.

Counts Four and Five: Grand Larceny in the Third and Fourth Degree on August 4, 2019

Miguel Ramos, who had twelve years' experience working in the landscaping industry, testified that, on August 5, 2019, he noticed a trailer that he had purchased in 2001 had been stolen. Inside the trailer was a walking lawnmower and other tools. Ramos testified that, in his experience, the approximate "cost" of the trailer was $6,000, and the tools $2,000. He did not specify whether he was referring to his purchase cost, replacement cost or market value. He stated that it would cost him $5,000 to replace the lawnmower. Ramos did not testify when he purchased the mower and tools or about their condition. See Grand Jury Minutes (October 9, [*3]2019) at 7-8.

Counts Seven and Eight: Grand Larceny in the Third and Fourth Degree on August 16, 2019

Carlos Interiano, owner of a landscaping business, testified that he had seven years of experience as a landscaper, including ordering equipment. On August 16, 2019, he realized that equipment had been stolen from his trailer. He testified that among the missing items were two leaf blowers. By the time of his grand jury testimony, Interiano had replaced the leaf blowers at a cost of $1,100 total. He not yet replaced two chainsaws, which cost him $400 each; three hedge trimmers, which cost $400 each; or three weed wackers, which cost $450 each. Interiano testified that he knew the cost of these items because he usually bought new equipment each year to start the season. He did not testify about the condition of any of the stolen items or when they were purchased. See Grand Jury Minutes (October 9, 2019) at 46-47.

Counts Eleven and Twelve: Grand Larceny in the Third and Fourth Degree on August 17, 2019

Andrew Staudt, a landscape contractor, testified that his twenty-three years of experience taught him "the approximate value of certain items and what they're worth." Staudt stated that, on August 17, 2019, he noticed that seven pieces of landscaping equipment were missing from his truck. By the time he testified in the grand jury, Staudt had replaced four of the seven missing items: two backpack blowers, which cost $625 each, a "ProPress gun," costing $1,900, and a copper tubing cutter, which cost $189. When asked whether these amounts were the "approximate value for the items as [he] had purchased them in the past," Staudt stated that the numbers constituted an "average cost." Although he had not yet replaced the remaining three items, he testified that he had "called to see what it was going to cost [him] to replace" them and determined that a cordless drill would cost $140, a right angle drill would cost $200, and a Sawzall would cost $120. Staudt did not testify about the condition of any of the items or when they were purchased. See Grand Jury Minutes (October 8, 2019) at 15-17.

Count Sixteen: Grand Larceny in the Fourth Degree on August 19, 2019

Oscar Majano, who had owned a landscaping company for eleven years, testified that his work included ordering equipment. He stated that, on August 19, 2019, he noticed that several items were missing from his truck. When asked whether he "looked into how much it would cost to replace those items," Majano responded that he told the police that the replacement cost would be $2,700 total. The missing items were: three weed wackers ($360 apiece), one chainsaw ($300), two gas blowers ($600 each), one power trimmer ("maybe $250"), and a gas can ($50 "plus the gasoline"). Majano testified that he knew these prices from "working in landscaping for so many years." Majano did not testify about the condition of any of the items or when he purchased them. See Grand Jury Minutes (October 9, 2019) at 39-40.

Count Twenty-Four: Grand Larceny in the Fourth Degree on August 28, 2019

Fernando Parra testified that he had worked as a landscaper for eighteen years. Part of his business included purchasing equipment. He stated that, on August 28, 2019, he noticed that [*4]equipment was missing from his trailer. Parra then testified to his replacement costs, the "approximate price that [he] paid to buy the new items": a blower ("approximately" $750), a weed wacker ("almost $350"), two trimmers ("the same price, 350, the two of them"), and a chainsaw ("like about 450"). Parra did not testify about the condition of any of the items or when they were purchased. See Grand Jury Minutes (October 11, 2019) at 8-9.

The People Failed to Establish That the Market Value of the Stolen Items Exceeded the Statutory Minimums for Third- and Fourth-Degree Grand Larceny or That Replacement Value was the Appropriate Measure.

Grand larceny in the third degree, as charged here by the People, requires that a person steal property with a value exceeding three thousand dollars. Penal Law § 155.35(1). Grand larceny in the fourth degree, as charged here, requires that a person steal property with a value exceeding one thousand dollars. Penal Law § 155.30(1). The People, relying on Penal Law § 155.20(1), correctly instructed the grand jurors that the value of the stolen property "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." Grand jury minutes dated October 18, 2019 pp. 9-10. "Market value of a stolen item is to be measured by what the thief would have had to pay had he purchased the item instead of stealing it." People v. Harold, 22 NY2d 443, 445 (1968). "It is axiomatic that in determining value the condition of the item must be taken into account." People v. Blayusik, 192 AD2d 1073, 1074 (4th Dept 1993), aff'd 83 NY2d 774 (1994).

The People acknowledge they relied on replacement value rather than market value in the grand jury. But as they charged the grand jurors, replacement value can only be used if the People can establish that market value could not be satisfactorily ascertained. Penal Law § 155.20(1); cf. People v. Vientos, 79 NY2d 771, 772 (1991) (People properly relied upon replacement value where they showed that there was no market for the outdated computers that were stolen). Here, the People made no attempt to show that a market value for the stolen items could not be satisfactorily ascertained before introducing evidence of replacement value. The closest they came was the testimony of Hector Escobar regarding the July 27, 2019, theft. Referring to the trailer he purchased in 2003 for $10,000 and the other stolen items, Escobar estimated a loss of "$10,000 minimum . . . because it's a used trailer at this point and used equipment. It's — there's no price on it, but —." Before he could complete his sentence, Escobar was cut off and never got to finish his testimony about whether there was a market for used trailers and landscaping equipment.

Escobar's testimony fell far short of establishing that there is no market for the sale of used trailers and lawnmowers, or that such sales do not "occur with some regularity and uniformity." Vientos, 79 NY2d at 772. Other prosecution witnesses testified regarding their experience in the landscaping field, including the purchasing of equipment. But none testified that there was no market in used landscaping equipment. Thus, despite charging the grand jury that the market value of the stolen items was the correct measure of value unless market value could not be "satisfactorily ascertained," the People relied almost exclusively on replacement value without offering any testimony about the lack of a market in used landscaping equipment [*5]or why market value could not be "satisfactorily ascertained."

In their defense, the People argue that because the case is currently at the grand jury stage they are held to a lesser evidentiary standard, and the court should therefore permit replacement evidence to establish value. They contend that the "appropriate time" to be held to the requirements of Penal Law § 155.20(1) is at trial, "where the People are required to prove each and every element beyond a reasonable doubt." People's affirmation at para. 49. Of course that is not true. Even in the grand jury, the People must present legally sufficient evidence: "competent evidence, which if accepted as true, would establish every element of an offense." CPL § 70.10 (1); see also CPL § 190.65(1), People v. Goldstein, 73 AD3d 946, 947 (2d Dept 2010). Penal Law § 155.20(1) makes no distinction regarding the procedural posture of the case. Although in the grand jury the People did not have to prove the value of the stolen items beyond a reasonable doubt, they had to present some evidence as to the market value of the items or why market value could not be established. Where, as here, the correct type of evidence is lacking, no evidentiary standard will excuse its absence. Thus, in People v. Lopez, 79 NY2d 402 (1992), the Court of Appeals held that an affidavit submitted in the grand jury prepared by the owner of stolen property was insufficient to establish the value of the property because the basis for owner's valuation was not included. The error was not excused because of the lower evidentiary standard in the grand jury.

The Court's recent decision in Deleon, 34 NY3d 965, is also instructive. There, defendant was charged with attempted third- and fourth-degree grand larceny in a mailbox fishing scheme. The Supreme Court dismissed the attempted third-degree charge, and reduced the attempted fourth-degree charge, on legal sufficiency grounds. The Appellate Division, First Department, reinstated the charges. The Court reversed the Appellate Division and held that grand jury evidence was insufficient to establish the charges' value element because there was no evidence that the defendant "came dangerously close to stealing property valued at more than $3,000 or $1,000." Deleon, 34 NY3d at 966-67. Despite the Appellate Division's finding that "the relatively permissive standard for sufficiency of grand jury evidence" allowed a finding of legal sufficiency (People v. Deleon, 157 AD3d 649, 650 [1st Dept 2018]), the Court of Appeals held that the People could not rely on the defendant's statement that "he would be paid $100 for each mailbox fished," as that evidence could not prove the value of the items that he attempted to steal. Deleon, 34 NY3d at 967; see also Goldstein, 73 AD3d at 949 (upholding dismissal of the indictment where "there was no competent proof" of the property's actual market value). So too here, evidence regarding the stolen items' replacement value, without a showing that there is no market for them, cannot establish the value of those items, whether in the grand jury or at trial.

This court recognizes that even without explicit testimony regarding market value, evidence regarding purchase price, the date of purchase and the condition of the items taken could, in certain circumstances, permit a reasonable inference as to an item's market value. See, e.g., People v. Seador, 169 AD3d 619, 620 (1st Dept 2019); People v. Vandemortel, 122 AD3d 1333 (4th Dept 2014). But the witness "must provide a basis of knowledge for his statement of value before it can be accepted as legally sufficient evidence of such value." Lopez, 79 NY2d at 404. Further, a victim's recitation of the stolen item's original purchase price will not alone [*6]demonstrate value. See People v. Rivera, 180 AD3d 939, 940 (2d Dept 2020) (legal sufficiency claim unpreserved but reversing on weight of evidence for failure to establish market value, relying solely on purchase price). Original cost may establish market value when there is a "substantial" difference between that price and the minimum amount required by the grand larceny statute in question, "and where other facts such as the description of the condition of the property at the time of the theft and the period of time which elapsed between the date of purchase and the date of the theft negate the possibility that the vehicle's market value has significantly depreciated." People v. Jackson, 194 AD2d 691 (2d Dept 1993).

Here, there was little or no testimony from which the market value of the stolen property could be reasonably inferred. Andrew Staudt, Oscar Majano and Fernando Parra testified about the amounts they paid to replace their stolen items or what it would cost to replace them. Nothing about the market value of their stolen items could be extrapolated from their testimony. There was no testimony about when those items were purchased, what the purchase price was, or what condition the items were in when they were stolen. At best, all that could reasonably be inferred is that they were in working order.

Hector Escobar and Miguel Ramos provided a little more detail about some of their stolen items but they too testified only about what they paid for the items or what it would cost to replace them; they did not estimate the value of the items at the time of the thefts. Escobar's trailer was purchased in 2003 for "about $10,000" and he purchased his lawnmower for $5,000. He testified it would cost more than $5,000 to replace the lawn mower and estimated his total loss to be at least $10,000. It was unclear how he arrived at that estimate and whether it was based on replacement value or some combination of market and replacement value. Escobar did not testify when the lawnmower was purchased or about the condition of the trailer or the lawnmower. While he might have been qualified to estimate the market value of these items at the time of the theft or explain that there was no market value, he was never asked to do so. The one time he came close, he was cut off and not permitted to finish his sentence.

Ramos testified that he purchased his trailer in 2001, but he did not testify how much he paid for it or what condition it was in. When he was asked "what is the approximate cost of the trailer," he responded $6,000, but it appears that he was referring to its replacement cost, not its market value. Immediately before that question was asked, he was asked about the "cost" of the lawnmower. When he responded, $5,000 he was asked "is that the price that would require you to replace that item?" and he responded "yes." With respect to the tools that were taken, he was simply asked "what's the approximate cost of those items." He responded $2,000. Again, it was unclear whether he was referring to his purchase cost, replacement cost or the market value of the tools when they were stolen. He did not state when they were purchased or what condition they were in, so it was impossible for the grand jurors to draw any rational inference as to their market value.

Carlos Interiano estimated his loss to be $4,450, but he testified regarding replacement cost for some of the items and purchase price for others. He did not testify about market value. Nor did he testify about the age of the items he lost or their condition, so it was impossible to draw any reasonable conclusions about the value of the items at the time of the theft. While he [*7]did state he was familiar with the cost of purchasing landscaping tools because "we usually do almost every year. We get one new to start the whole season," this was inadequate to establish the market value of the tools when they were stolen, especially given how close his estimated loss was to the statutory thresholds. It was unclear if he was merely stating that he purchases some new items every year or if he replaces all the items every year. If it is the latter, his testimony suggests that the tools depreciate rapidly.

The People argue that there was evidence the stolen items were "in working order," and used in the complainants' landscaping businesses, but these factors alone were hardly enough to establish their market value. In most instances it was not known how old the items were or what condition they were in. In some cases the items were quite old. The stolen trailers were 16 and 18 years old and there was no testimony about their condition. Nor was there any evidence about how quickly heavily used landscaping equipment depreciates. Thus, while in some cases the witnesses' valuation of their equipment was significantly higher than the statutory thresholds set forth in Penal Law sections 155.35(1) and 155.30(1), the wide gap was insufficient here because the valuation evidence was insufficient to permit a rational inference that the market value at the time of the thefts exceeded either $3,000 or $1,000. See People v. James, 67 NY2d 662 (1986) (purchase price of stolen vehicle purchased used one year prior to theft insufficient as matter of law to establish market value where vehicle was used as "gypsy cab"); cf. Vandemortel, 122 AD3d at 1333-34 (evidence that the value of a stolen item exceeded the statutory threshold for fourth-degree grand larceny was sufficient where the purchase price was well in excess of $1,000 and there was evidence as to the item's condition, regular operation, and maintenance); People v. White, 167 AD2d 256, 258 (1st Dept 1990) (People established value of stolen automobile where evidence "included the model, age, condition prior to the theft, operability of the auto upon its recovery, the purchase price, the fact that it was still under warranty at the time of the theft, the cost of the only repair it needed and the amount of depreciation.

Accordingly, because the People failed to present evidence of the market value of the stolen property, evidence that would allow the grand jury to reasonably infer market value, or evidence that market value could not be reasonably ascertained, the evidence in the grand jury, including evidence of replacement value, was not legally sufficient to support the charges of grand larceny in the third and fourth degrees. See Goldstein, 73 AD3d at 947. Counts 1, 2, 4, 5, 7, 8, 11, 12, 15, 16 and 24 are dismissed. The People are given leave to represent these charges to a new grand jury panel. See CPL § 210.20(4).

There were no other defects in in the grand jury presentation and the evidence was sufficient to support the remaining counts of the indictment.

There Was Probable Cause to Issue the CSLI and Search Warrants.

Defendant's motion to controvert the warrants for cell site tracking and to search defendant's car and cell phone is denied. A presumption of validity attaches to a warrant issued by a judge. See People v. Castillo, 80 NY2d 578, 585 (1992). Search warrant applications must merely "provide the court with sufficient information to support a reasonable belief that evidence [*8]of illegal activity will be present at the specific time and place of the search." People v. Cooper, 120 AD3d 710 (2d Dept 2014); see also People v. Nieves, 36 NY2d 396, 401 (1975). With regard to CSLI applications specifically, "the factual allegations [must] establish probable cause to believe that relevant and material evidence of the kind specified in the Order would be found within the requested records." People v. Harris, 62 Misc 3d 1076, 1081 (Sup Ct, Queens County 2019) (citing Carpenter v. United States, __ US __, 138 S Ct 2206, 2221 [2018]).

The court has reviewed the CSLI affidavit as well as the affidavit in support of warrants to search defendant's car and cell phone. The cell site application contained information establishing probable cause to believe that records relating to the location of defendant's phone would provide evidence of the location, planning, and execution of the underlying offenses. See People v. Simpson, 62 Misc 3d 374, 389-90 (Sup Ct, Queens County 2018) (citing Carpenter, 138 S Ct at 2217; Riley v. California, 573 US 373, 385 [2014]). In addition, the application to search defendant's car and cell phone offered sufficient information to believe that the car and phone contained evidence of the crimes. See People v. Pinchback, 82 NY2d 857, 858 (1993); People v. Corr, 28 AD3d 574, 575 (2d Dept 2006). Detective Damien Suarez based both applications on information he obtained from named complainants and witnesses, surveillance video depicting both defendant and his car, and a source for defendant's cell phone number. In addition, in support of his application to search the car and phone, Suarez averred that records obtained via the CSLI warrant confirmed that the phone belonged to defendant. Suarez further stated that he used the cell tracking information to locate defendant, sitting in his car, across the street from a landscaping lot. When Suarez observed defendant, he was holding his cell phone. This information was more than sufficient to supply the requisite probable cause to issue the warrants.

This constitutes the order of the court.

Dated: October 21, 2020

Mineola, New York

Robert A. Schwartz

Acting Justice, Supreme Court Footnotes

Footnote 1:Because defendant is already indicted for a count of petit larceny for each of the eight larcenies there is no point in reducing the grand larceny charges to petit larceny (see CPL § 210.20[1-a]) rather than dismissing them.