The defendant, an attorney, was indicted in a nine count consolidated instrument. He was the executor-attorney of the estate of his deceased law partner. Seven of the counts concerned larceny of estate property and one concerned perjury in an examination before trial in a Surrogate’s Court Proceeding to revoke letters testamentary. The remaining count, Forgery in the Second Degree, concerned a corporate client.
Following a substitution of counsel on the eve of the trial, the defendant moved to inspect the grand jury minutes and for a dismissal thereof on the grounds of insufficiency. Based on records, the court granted the motion for inspection and following such inspection denied the motion to dismiss. Robbery was not a matter. These are considered white collar crimes of a criminal nature.
Following another substitution of counsel, the defendant attorney moved for a further inspection of the grand jury minutes and for a dismissal of the indictment, claiming that the district attorney failed to provide legal instructions in the form of a charge to the grand jury recorded in minutes, thus rendering their proceedings fatally defective and upon the further basis that the grand jury was unconstitutionally empanelled by reason of the systematic exclusion of women.
A hearing was held on the motion. The only witness at such hearing was the assistant district attorney who submitted the evidence to the grand jury. He testified that the evidence on counts one through eight, consisting of the testimony of fifteen witnesses and exhibits was presented and his charge to the grand jury consisted of a reading of the definition of Perjury in the First Degree in Penal Law.
The First Count for the grand jury is Grand Larceny, Second Degree, violation of the Penal Law, alleged to be committed that the defendant, in the County of Suffolk stole certain property consisting of United States currency in the amount exceeding five thousand dollars, to wit, approximately twenty-six thousand dollars in United States currency.
He further testified that there were no instructions concerning the degrees of grand larceny, the definitions of specific words used in the statute defining particular degrees of larceny or corroboration in the case of perjury. There were no instructions covering the defendant’s status, rights, powers and duties in his capacity as executor of the estate of a man, although the decedent’s will was an exhibit before the grand jury.
Thereafter, evidence was submitted to the grand jury by the same assistant district attorney. One witness testified, the testimony encompassing approximately thirty-seven pages. The same district attorney testified that the instructions given to the grand jury concerning count Nine (Forgery in the Second Degree) consisted of reading one statute and two other statutes regarding forgery without adding anything to it. The district attorney did not specify which sections of the forgery statute were read to the grand jury.
The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication.
To assure due process during grand jury proceedings, Criminal Procedure Law provides that where necessary or appropriate, as in the case at bar, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes.
The standard to be met by petit jury instructions, that they contain an adequate statement of the law to guide the jury’s determination, applies with equal force to grand jury instructions.
Although the record established the indictment was not induced by prosecutorial zeal or prosecutorial misconduct and the evidence was sufficient to support the indictment, the people were unable to establish that a proper charge was delivered to the grand jury. Thus the issue is not whether adequate but unrecorded instructions were given to the grand jury.
The district attorney’s failure to properly instruct the grand jury was not a mere irregularity or a harmless procedural defect. It constituted a substantive prejudicial denial of due process rendering the grand jury proceedings defective.
The defendant’s remaining contention, that the grand jury was unconstitutionally constituted, is without merit. The defendant’s motion to dismiss the indictment is granted.
In another grand larceny lawsuit, the defendant man was indicted for robbery in the second degree and grand larceny in the fourth degree. After a jury trial, the defendant was acquitted of the robbery charge but convicted of grand larceny in the fourth degree.
The complainant, at a known drug location, initiated a drug transaction with the defendant. The complainant gave the defendant $20.00, anticipating an exchange of drugs as in previous purchases from the defendant. However, after accepting the currency, the defendant placed his hand inside the breast pocket of his jacket seemingly reaching for a weapon and said that he has been taxed, keeping the currency without an exchange and instructed the complainant to get off the block.
Taking the evidence in the light most favorable to the people, the jury found an intent to immediately exchange currency for drugs and thus the transfer of funds was not an absolute transfer of possession but at best a temporary transfer of custody.
The defense contends that the facts establish a “giving” as opposed to a “taking”; a case of petit larceny by false pretenses as opposed to grand larceny “from the person”. The complainant maintains it was a common law trespassory taking elevated by a “taking from the person” to grand larceny.
When the owner of property delivers property to another for a specific purpose, if the property is not utilized for that purpose, the title rests with the owner and the possessor has mere custody of the property.
In the instant case, the defendant had mere possession of the currency and if a jury finds, as they did, that the defendant took the money cum animo furandi (with intention to steal), then the wrongful withholding of the property constitutes a taking.
A “taking” from the person can only occur in a trespassory taking because only in such a taking is there a risk of danger where the victim perceives the event as a larceny. It could not occur where the larceny arises out of a trick or false promise where the victim, at the time of the incident, is unaware of the perpetrator’s intent. This risk of danger, the court holds, is equally applicable to a withholding or other trespassory taking where there is a close proximity by the defendant. Currency was tendered for the specific purpose of consummating a drug deal; defendant accepted the currency but refused to deliver the drugs.
The defendant further contends that the fact pattern constitutes larceny by false promise. Larceny by false promise requires a showing that the defendant, acting pursuant to a scheme to defraud, obtained property by means of an express or implied representation of future conduct. Evidence of future conduct between the parties was not shown in the case at bar. A finding of false promise is therefore not possible. In the case at bar, there was no misrepresentation of present fact prior to the transfer. There was no prior indication that drugs would not be exchanged for cash.
The court finds that grand larceny was appropriately charged and that there was sufficient evidence to support a verdict of grand larceny from the person.
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