On facts very similar to those of the instant case, the United States Court of Appeals for the Fifth Circuit, vacated a sentence imposed for escaping from custody after being arrested on a felony charge, and remitted the matter to the trial court to modify the judgment to reduce the conviction to escaping from custody after being arrested on a misdemeanor charge. At the trial, documents were introduced into evidence to show that he was being held in custody at the time of his escape on a charge of violating section 641 of title 18 of the United States Code which provides that: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or “Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted-“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. “The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
The documents described the property alleged to have been stolen as “31 United States Postal Money Orders, things of value of the United States”, but contained no allegation of their value. The Fifth Circuit held that the criminal defendant’s conviction of escaping from custody after being arrested for a felony charge had to be reduced to one of escaping from custody after being arrested on a misdemeanor charge in view of the lack of proof of the value of the property alleged to have been stolen.
Moreover, the Fifth Circuit stated the following with regard to the amount of proof necessary to establish escape from custody on account of a felony charge: “In the case before us, the indictment was silent as to the nature of the offense leading to the custody, and the criminal court did not charge the jury at all on the point. There was only a passing hearsay reference to a felony arrest during the course of trial, hardly enough to constitute a basis for a jury finding of guilt beyond a reasonable doubt, particularly when the jury was not even instructed on the point. The proof was sufficient to prove, at most, escape from custody on account of a misdemeanor charge”.
Applying the rationale of the above mentioned case, to the instant case, the Police Officer’s testimony that he arrested defendant for attempted grand larceny in the second degree, a felony, was insufficient to prove escape from custody after being arrested for a felony. For the underlying offense pursuant to which defendant was in custody to amount to a felony, there must be some proof that the value of the property that defendant attempted to steal exceeded $1500 (Penal Law, §§ 110.00, 110.05, 155.35). The People must establish that defendant’s arrest was “authorized” (Penal Law, § 205.00, subd. 2). This is not to say, however, that a defendant’s guilt of the underlying offense must be proven beyond a reasonable doubt to convict him of escape in the second degree since that would contravene the language of sections 205.15 and 205.10 of the Penal Law. Thus, in view of the lack of proof of the value of the property that defendant attempted to steal, we reduce defendant’s conviction of escape in the second degree to one of escape in the third degree, a misdemeanor (Penal Law, § 205.05) and we remit the matter for resentencing on all counts of which defendant stands convicted.
Accordingly, the court held that the judgment is modified, on the law, by reducing the conviction of escape in the second degree to one of escape in the third degree, and vacating the sentences imposed on all charges of which defendant stands convicted. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Queens County, for resentencing. We have considered the defendant’s other contentions, including his assertion that there was no probable cause for his arrest, and we reject them.