Ellerin, J. (concurring in part and dissenting in part). While concurring in the conclusion that defendant’s guilt of criminal possession of stolen property should be sustained, I cannot agree that the People established that the value of the stolen computer in this case exceeded $1,000, an essential element of the crime of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [1]), the degree of the crime of which the defendant stands convicted.
The "value of stolen property” is defined in Penal Law § 155.20 (1) as "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”. (Emphasis added.)
It is clear from the statute itself that the cost of replacement of the property may be considered only if the market value cannot be satisfactorily ascertained. In this case, the only evidence as to value was the testimony of the People’s expert, a buyer for a retail store chain, that his company does *128not sell used equipment and that the manufacturer does not authorize its dealers to sell used equipment. The majority holds that this testimony is sufficient to establish the inability to satisfactorily ascertain the market value of the property thereby permitting the People to use cost of replacement as the proper measure of value.
The majority’s statement, understandably unsupported by citation, that "[i]f defendant would assert the existence of a market, it is his burden to come forward with evidence to that effect”, is a somewhat astounding example of impermissible burden shifting. The burden, of course, always remains on the People to prove the essential element of market value, if ascertainable, of the stolen property criminally possessed. (See, i.e., People v Corbett, 129 AD2d 433-434, lv granted 69 NY2d 1012, appeal dismissed 70 NY2d 870; People v Rivera, 114 AD2d 305; People v Jones, 111 AD2d 264, 265; People v Medina, 111 AD2d 653, 654; cf., People v Leonard, 62 NY2d 404, 411.) The distinction between the People’s burden, in the first instance, of establishing the essential element of market value and, once evidence of a market value is presented, the defendant’s right to controvert the amount of that value is self-evident. In an attempt to blur this crucial difference, the majority offers "examples” of other burdens on the defendant "to come forward with proof in mitigation of criminal liability” which are statutorily delineated affirmative defenses and not the essential elements of the underlying crime, as is here the case. Significantly, no statutory authority is offered, nor does one exist, that proof of the proper value of the property involved in a prosecution for criminal possession of stolen property is an affirmative defense.
Undoubtedly, there are situations where the "market value” of property cannot be satisfactorily ascertained, but evidence merely indicating that there is no cognizable secondhand or resale market in certain stores for the particular item, here a used computer, is not sufficient to establish that a market value for the computer, as contemplated by the statute, cannot be satisfactorily ascertained.
That resale value is not the sole measurement of "market value” was made clear in People v Harold (22 NY2d 443) where the Court of Appeals set forth the mechanism for ascertaining the market value of a stolen item of property that is in a used and/or damaged state at the time of the theft, as is here the case. In People v Harold (supra), the property involved was a water pump that had been purchased *129five days earlier for $124 (at a time when the statutory dividing line between grand and petit larceny was $100) and which had been bent and damaged in the course of being installed prior to its theft. In determining whether the People had sufficiently established that the value of the pump exceeded $100, the court expressly held (at 445) that the market value of the stolen item "is to be measured by what the thief would have had to pay had he purchased the item instead of stealing it” and that "the original cost of an item is not proof of its value some five days after the goods left the store” since "the value of the pump must also be reduced to reflect the mechanical prowess of Crego and Terpering” (the less than skillful installers). The court further noted that "[additionally, an allowance must be made for the fact that the pump, when taken, was no longer new” (at 445).
In the instant case market value could have been easily and satisfactorily established by appropriate evidence as to the original cost of the computer less the amount to be attributed to depreciation. (See, People v James, 67 NY2d 662; cf., People v Batista, 141 AD2d 654.) No such evidence was produced by the People who, instead, chose to rely upon replacement cost. This however, was not consonant with the statute which mandates proof of market value, where ascertainable, before any consideration of replacement cost can come into play.
Accordingly, since the market value of the stolen computer at the time and place of the crime was here ascertainable, the People’s failure to establish that value would require that the defendant’s conviction be reduced to criminal possession of stolen property in the fifth degree (Penal Law § 165.40).
Even if we were to assume, as the majority argues, that the computer was obsolete at the time it was stolen and therefore without a legitimate resale market, it has been held that the value of such property in a thieves’ or underworld market, or the amount requested by the criminal possessor of the item, may properly be used in determining market value for purposes of the criminal possession statute (see, People v Colasanti, 35 NY2d 434; People v Corbett, supra). In any event, there was no testimony here that this equipment was technologically obsolete, and wholly without value, as the majority presumes, but only that the manufacturer had discontinued this particular model.
While the majority emphasizes "the impact of the wrong upon the owner who can only turn to the retail seller to make *130good his loss”, which might be relevant if this were a civil case brought by such owner for damages, a different standard applies in the instant criminal action. "The purpose of the statutes fixing the higher degree of crime is not related to regulating the economic market but to assessing the scale of criminal operations by the persons charged with offenses under the statutes” (People v Colasanti, supra, 35 NY2d, at 437). Market value has long been held to be measured by what the thief would have to pay had he or she purchased the item instead of stealing it (see, People v Harold, supra). The majority’s reliance on the 1965 amendment to the statute in support of its position that replacement value was added to the statute in recognition of the impact of the wrong upon the owner is puzzling. The legislative history of this statute merely states: "With a few minor changes of substance, this section substantially restates and clarifies the standards for evaluating stolen property contained in existing Penal Law §§ 1303, 1304 and 1305” (Commn Staff Notes on Proposed NY Penal Law, reprinted in 1967 Gilbert’s Criminal Code & Penal Law, at lc72).
Moreover, it should be noted that even where replacement cost is properly used, this court has held that the depreciated condition of a stolen item must be taken into account in arriving at such replacement value. (People v Medina, 111 AD2d 653.) Of course, here no such evidence was provided.
Sullivan, J. P., and Ross, J., concur with Wallach, J.; Kassal and Ellerin, JJ., concur in part and dissent in part in an opinion by Ellerin, J.
Judgment, Supreme Court, New York County, rendered on October 29, 1987, affirmed.