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THE PEOPLE, res. v. EDWIN VEGA, def.-app

11-414. THE PEOPLE, res. v. EDWIN VEGA, def.-app — Judgment of conviction (Larry R.C. Stephen, J. at mistrial declaration; Anthony J. Ferrara, J. at retrial), rendered May 10, 2011, reversed, on the law, and the accusatory instrument dismissed.

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11-414. THE PEOPLE, res. v. EDWIN VEGA, def.-app — Judgment of conviction (Larry R.C. Stephen, J. at mistrial declaration; Anthony J. Ferrara, J. at retrial), rendered May 10, 2011, reversed, on the law, and the accusatory instrument dismissed.

Defendant was charged in a misdemeanor information with petit larceny and criminal possession of stolen property in the fifth degree, based upon allegations that he attempted to leave a particular Babies “R” Us store without paying for merchandise concealed in his hands. At the initial bench trial on the charges, the People adduced evidence showing a refund fraud rather than a typical shoplift, namely, that defendant removed certain items from a store shelf and then took the items to the return desk for a refund to which he was not entitled. Upon the close of evidence, defendant moved for an order of dismissal or an acquittal, on the ground that the People’s proof of an alleged refund fraud varied from the allegations set forth in the accusatory instrument, and that his right to fair notice was therefore violated. Criminal Court denied the motion to dismiss and instead granted a mistrial over defendant’s objection. The Court held that:

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