Pretrial motion (CPL §255.10) by the defendant for relief in the nature of dismissal or reduction of an indictment, preclusion and/or suppression of evidence, and other relief. The defendant is charged by a single-count indictment with having committed the crime of criminal mischief in the second degree (Penal Law §145.10), a class D felony. The charges arise out of the defendant’s alleged cutting and removal of trees valued at over $1,500.00 from the property of Highland Forest, LLC, located in the town of Chesterfield, Essex County, during the period of mid-October 2016 through October 2019. The Court has considered the following papers on the motion: notice of motion dated December 9, 2020, and affirmation of Gregory LaDuke dated December 9, 2020, all in support of the motion; and an affirmation of Michele A. Bowen Esq. dated December 21, 2020 in opposition to the motion. I. Dismissal of Indictment The defendant moves to dismiss the indictment on the grounds that (1) the indictment is defective (CPL §210.20[1][a], §210.25), (2) the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense (CPL §210.20[1][b], §210.30), and (3) the grand jury proceeding was defective (CPL §210.20[1] [c], §210.35). The defendant also moves to inspect the grand jury minutes (CPL §210.30). A. An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime, such as by failing to allege that the defendant committed acts constituting every material element of the crime charged (People v. Iannone, 45 NY2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656). “While no particular form is constitutionally mandated, an indictment must afford a defendant ‘fair notice of the charges made against him, so that he can prepare a defense and in order to avoid subsequent attempts to retry him for the same crime or crimes.’ (People v. Wright, 112 AD2d 38, 39, 490 N.Y.S.2d 943 [dissenting opn], revd. on dissent 67 NY2d 749, 500 N.Y.S.2d 98, 490 N.E.2d 1224.)” (People v. Ray, 71 NY2d 849, 850, 527 N.Y.S.2d 740, 740-741, 522 N.E.2d 1037, 1038 [1988]). Incorporation by reference to the statute operates to constitute allegation of the elements of the crime (see People v. D’Angelo, 98 NY2d 733, 750 N.Y.S.2d 811, 780 N.E.2d 496; People v. Ray, NY2d 850, 527 N.Y.S.2d 740, 522 N.E.2d 1037; People v. Cohen, 52 NY2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813; People v. Squire, 273 AD2d 706, 706707, 711 N.Y.S.2d 790). The Court has examined the indictment and finds that it fully complies with CPL §200.50(7). B. The defendant’s motion to inspect the grand jury minutes is granted. Upon inspection, the minutes and voting sheet filed with the Court reveal that a quorum of at least sixteen grand jurors were present during the presentation of evidence and at the time the assistant district attorney instructed the grand jury on the law, and at least 12 of those grand jurors voted to indict the defendant. Also, the instructions were not defective as a matter of law. The defendant’s motion to dismiss the indictment for alleged defects in the grand jury proceedings is denied. C. The court has reviewed the grand jury minutes to determine whether sufficient evidence was presented to support each and every count in the indictment. “[A]n indictment is presumed to be based on legal and sufficient evidence” (People v. Bergerson, 17 NY2d 398, 402, 218 N.E.2d 288, 290, 271 N.Y.S.2d 236, 238; see also People v. Howell, 3 NY2d 672, 675, 171 N.Y.S.2d 801, 803, 148 N.E.2d 867, 868). In determining the sufficiency of the evidence before the grand jury, including proof encompassing any requisite culpable mental state (People v. Mayo, 36 NY2d 1002, 374 N.Y.S.2d 609, 337 N.E.2d 124; People v. Lott, 104 AD2d 710, 480 N.Y.S.2d 597; People v. Delameter, 96 AD2d 629, 464 N.Y.S.2d 878), the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial (People v. Swamp, 84 NY2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774, 776; People v. Pelchat, 62 NY2d 97, 105, 476 N.Y.S.2d 79, 83, 464 N.E.2d 447, 451; People v. Valles, 62 NY2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418; People v. Dunleavy, 41 AD2d 717, 341 N.Y.S.2d 500, affirmed 33 NY2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432). “In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt” (People v. Mayo, supra at 1004, 374 N.Y.S.2d 609, 337 N.E.2d 124). “In determining whether the People have reached this stage, all questions as to the quality or weight of the proof should be deferred. In other words, if the prosecutor has established a prima facie case, the evidence is legally sufficient ‘even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements.’ To further illustrate the point the Commission Staff noted that ‘evidence may be ‘legally sufficient’ to support a charge although it does not prove guilt ‘beyond a reasonable doubt,’ and for that matter, although it does not even provide ‘reasonable cause’ to believe that the defendant committed the crime charged.’ (See Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10)” (People v. Sabella, 35 NY2d 158, 167, 359 N.Y.S.2d 100, 108, 316 N.E.2d 569, 574-575). A person is guilty of criminal mischief in the second degree when with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, that person damages property of another person in an amount exceeding one thousand five hundred dollars ($1,500.00). Here, there was testimony and photographic evidence that the defendant, along with his brother, James Martin, a codefendant, entered upon the property of Highlands Forestry, LLC without the permission or consent of the owner and cut trees and vegetation in the furtherance of establishing trails, erecting tree stands, and placing bait for hunting purposes. An environmental conservation officer testified that he found the defendant in one of the tree stands and engaged in a conversation during which he told the officer that he and the co-defendant had cut the trees and maintained the trails and tree stands for three or four years. Additionally, another environmental conservation officer testified that he found the co-defendant in another tree stand on the Highlands Forestry property and the co-defendant told him that he knew he was on Highlands property and that he and the defendant made the trails. This evidence was legally sufficient to establish reasonable cause to believe that the defendant and co-defendant damaged the property of Highland Forestry, LLC without any right to do so or reasonable ground to believe he had such right. As to the amount of damages caused by the defendant, the People presented the testimony of a certified forester who had been retained as a forestry consultant to count, measure and identify the trees cut by the defendant and co-defendant. The expert who testified did not perform the actually field work to identify and count the trees cut by the defendants, such work having been performed by another forester who prepared a report that was not placed into evidence.1 According to the report, 465 trees had been cut, most of them hardwood. Many of the trees were saplings with stumps less than six or seven inches in diameter, and only a few of the stumps were twelve inches in diameter. The expert could not recall the stumpage value of the trees — “the value that the land owner would receive if they had paid someone to cut timber off their property”2 — as recorded in the report, but testified it was “very low”3, “two hundred fifty [dollars]. I can’t remember. It’s in the report.”4 The expert testified that the replacement cost of those trees with two- or three-year-old seedlings, two or three feet tall, would cost approximately $9.00 each and amount to about $4,600.00. It is the “long-established rule that the proper measure of damages for permanent injury to real property is the lesser of the decline in market value and the cost of restoration (see Hartshorn v. Chaddock, 135 NY 116, 122, 31 N.E. 997)” (Jenkins v. Etlinger, 55 NY2d 35, 39, 447 N.Y.S.2d 696, 698, 432 N.E.2d 589, 591 [1982]). In determining the diminution in value, the most important factor is “how the removal of the trees had affected the value of the property.” (Prop. Owners Ass’n of Harbor Acres, Inc. v. Ying, 137 AD2d 509, 510, 524 N.Y.S.2d 252, 254 [2d Dept., 1988]). Moreover, “it has been the intention of the courts in situations such as that at bar, where a defendant is guilty of damaging another’s real property and, more specifically, his greenery, to formulate a rule of law which does equity to both parties. That is to say, there appears to have been an effort to make sure that the measure of damages utilized was sufficient to compensate the plaintiff without unconscionably burdening the guilty defendant. In sum, we subscribe to the rule of damages stated by the Court of Appeals in Hartshorn v. Chaddock (supra) and applied by the Appellate Division, Fourth Department in Senglaup v. Acker Process Co. (supra), that damages in such cases may be awarded on the basis of either the replacement cost of the damaged trees or the diminution of the plaintiff’s property value resulting from the damage, whichever is less.” (Benavie v. Baker, 72 AD2d 541, 542, 420 NYS2d 735, 736 [2d Dept 1979]). In cases of tree-cutting and removal, a third measure of damage is available using the stumpage value of the trees cut and removed (see RAPL §861). “The term stumpage value is defined as ‘the current fair market value of a tree as it stands prior to the time of sale, cutting, or removal’ (RPAPL 861[3]).” (W. New York Land Conservancy, Inc. v. Cullen, 66 AD3d 1461, 1464, 886 N.Y.S.2d 303, 306 [4th Dept., 2009]).5 Furthermore, “the owner of property wrongfully taken by a trespasser is entitled to the enhanced value of the property as damages (Silsbury & Calkins v. McCoon, 3 NY 379, 381385, 390; see also 59 NY Jur. Timber and Lumber §7, at 43 [1968]). In Clark v. Holdridge (12 App.Div. 613, 43 N.Y.S. 115), this court long ago determined that in an instance where trees are cut inadvertently or by mistake, i.e., in good faith, the appropriate measure of damages is ‘the value of the trees as standing trees’ (id. at 616, 43 N.Y.S. 115; see Dyke v. National Transit Co., 22 App.Div. 360, 49 N.Y.S. 180). As a corollary to this rule, a property owner is entitled to the enhanced value of property taken in the event of an intentional or reckless trespass, i.e., market value (see Dyke v. National Transit Co., supra, p. 361, 49 N.Y.S. 180).” (Whitaker v. Mc Gee, 111 AD2d 459, 460-61, 488 N.Y.S.2d 514, 516 [3d Dept., 1985]). Thus, the appropriate measure of damages here is the lesser of the value of the 465 trees cut by the defendant as standing trees, otherwise known as stumpage value, or the cost to restore the property. Having submitted evidence to the grand jury that the cost to restore of $4,600.00 is higher than the “very low” stumpage value of the trees cut and removed by the defendant, the evidence before the grand jury was legally insufficient to establish the requisite element that the damage to the property exceeded $1,500.00. Similarly, the evidence established only that the stumpage value was $250, not in excess of that amount as would be required to charge the lesser included offense of criminal mischief in the third degree (Penal Law §145.05[2]). As a result, the sole count of the indictment is reduced to the lesser included offense of criminal mischief in the fourth degree (Penal Law §145.00[1]). II. Suppression of Statements by Defendant The defendant moves to suppress the statements allegedly made by the defendant as reflected in the CPL 710.30 notice served by the prosecution, and seeks a Huntley hearing (People v. Huntley, 15 NY2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) to determine the voluntariness of such statements. In response to the motion, the prosecution concedes that the defendant is entitled to such hearing as a matter of right. A decision on the defendant’s motion to suppress is reserved so that a hearing may be conducted pursuant to CPL 710.60(4) on March 4, 2021 at 2:00 p.m. III. Sandoval / Ventimiglia / Molineux The new discovery scheme in CPL article 245 also requires the People to disclose to the defendant a list of all misconduct and criminal acts of the defendant not charged in the indictment, superior court information, prosecutor’s information, information, or simplified information, which the prosecution intends to use at trial for purposes of (a) impeaching the credibility of the defendant, or (b) as substantive proof of any material issue in the case. In addition, the prosecution shall designate whether it intends to use each listed act for impeachment and/or as substantive proof. (CPL 245.20 [3]). The material required by this subdivision is not part of the automatic discovery which must be furnished by the People within fifteen (15) days of arraignment. Instead, the People are required to disclose the same “as soon as practicable but not later than fifteen calendar days prior to the first scheduled trial date.” (CPL 245.101 [b]). IV. Other Relief To the extent that this decision and order has not addressed any request for relief in the defendant’s pretrial motion, the same is hereby denied. It is so ordered. Dated: February 1, 2021
