
    The People of the State of New York, Respondent, v. Grace A. Edstrom, Appellant.
    County Court, Nassau County,
    May 28, 1958.
    
      Patrick J. Beary for appellant.
    
      Frank A. Gulotta, District Attorney, for respondent.
   Johh P. Dowohoe

(Putnam County Judge and Acting Judge for Nassau County). This is an appeal from a judgment of conviction after trial in the Nassau County District Court for a violation of section 1433 of the Penal Law (malicious mischief; injury to property).

On September 17,1957 an information was filed in the Nassau County District Court charging the defendant with a violation of section 1433 of the Penal Law in that the defendant unlawfully and willfully destroyed certain property of another, ‘ ‘ to wit, defendant threw a foreign substance on shrubs and flowering bushes on the above premises, the value of property injured or destroyed thereof by reason of the foregoing was less than $100.00.” In the course of a somewhat lengthy trial the People established that the shrub which was allegedly injured was an Azalea bush planted on the complaining witness ’ private property. On cross-examination, the People’s horticultural expert testified that the Azalea bush is classified as an ornamental plant.

Appellant contends that the conviction must be reversed on the ground that she was charged and convicted for a violation of a section of the Penal Law which had no application to the alleged offense. Her argument is that section 1433 of the Penal Law applies to cases involving destruction or injury of the property of another “ where the punishment is not specially prescribed by statute.” The damage to an ornamental plant situated on private grounds, however, is covered and made a misdemeanor by virtue of section 1427 of the Penal Law. Thus, the appellant argues, the present criminal prosecution was one in respect of which punishment for the act of the defendant was specially prescribed by statute and, that being so, section 1433 of the Penal Law, under which she was convicted, has no application herein.

That very contention was passed upon by the Court of Appeals in People v. Costello (305 N. Y. 63) and was sustained by a unanimous court.

Accordingly, the judgment of conviction is reversed and the information dismissed. Submit order.  