New York Criminal Lawyer Blog
An appeal was filed from a judgment convicting a man of two counts of grand larceny in the second degree. The man contends that the conviction is not supported by legally sufficient evidence and it is against the weight of the evidence.
Based on records, the man’s argument concerning the legal insufficiency of the evidence is not preserved for the court’s review. Nevertheless, the court exercises their power to address the said argument as a matter of discretion in the interest of justice, and conclude that the evidence is legally insufficient to support the conviction.
Subsequently, the man was charged in count one of the indictment with stealing of money from a trust, and he was charged in criminal count two with stealing of money directly from an elderly woman who was the beneficiary of the trust.
The man contends that the complainant failed to establish that he committed the larceny by false pretenses and that, instead, his acts constituted larceny by false promise. In addition to the contention of the complainant concerning lack of preservation, the complainant’s sole remaining argument is that the evidence is legally enough to establish larceny by false pretenses.
The court agrees with the man with respect to count two of the indictment and, with respect to count one. For that reason, the court conclude that the complainant failed to present legally sufficient evidence establishing that the man stole the property in excess of fifty thousand dollars by false pretenses.
With respect to count one of the indictment, the complainant presented evidence establishing that the man and his accomplices developed a plan to steal money from the trust by proposing that the trust will pay for the repairs of the victim’s home which they never intended to make. Sources revealed that the man and his accomplices sent two proposals to the trustee, who approved one of the proposals and issued three checks. The last two checks were issued only after the man and his accomplices sent falsified inspection reports. The man admitted that those checks were issued on false pretenses because the inspection reports that presented to the trustee to write those two checks contained false representations of past or existing facts.
The court also agrees with the man that the evidence is legally insufficient to establish that the first check was stolen by false pretenses and thus that the conviction under count one is not supported by legally sufficient evidence. The first check was issued before the man and his accomplices sent falsified inspection reports, and there is no evidence in the record that the first check was issued upon any false representations of past or existing facts. The proposal approved by the trustee contains no false representations of past or existing facts, and there is no evidence of representations made to the trustee that could qualify as false representations of past or existing facts.
As the man properly admitted, the evidence is legally sufficient to establish that he stole money by false pretenses. The court therefore modify the decision by reducing the conviction of grand larceny in the second degree under count one of the indictment to grand larceny in the third degree and vacating the sentence imposed on the said count, and the court will remit the matter to the Supreme Court for sentencing.
With respect to count two of the indictment, charging the man with the theft of money directly from the trust beneficiary, the court conclude that the conviction under that count is not supported by legally sufficient evidence because the only representations made to the victim were false promises concerning the future intentions of the man and his accomplices with respect to the money. As a result, the court modify the decision by reversing the part of the conviction of the man for grand larceny in the second degree under count two of the indictment and dismissing that count of the indictment.
In another related case, an appeal was also filed from the decision of the Supreme Court convicting another man of the crimes of grand larceny in the second degree and offering a false instrument for filing in the first degree.
The man, a licensed podiatrist and a participant in one medical program, was indicted on one count of grand larceny in the second degree and ten counts of offering a false instrument for filing in the first degree. The first count concerned the man’s knowing of submission of false claims to a medical insurance for a period of time, which services he had not rendered, resulting in payment to the man. The counts two to eleven stems from the man’s submissions of claims to a medical insurance, knowing that such services had not been provided.
Following a jury trial, the man was convicted of all charges except those alleged in counts four, six and eleven, and was sentenced to a prison term of 2 1/3 to 7 years on the grand larceny conviction and 1 to 3 years each on the seven counts of offering a false instruments for filing, each of which was to run concurrently with each other but consecutively to the grand larceny sentence.
The man was also ordered by the court to pay reimbursement. The man challenges his conviction on several grounds and also urges that the sentences imposed are cruel and excessive.
As to the admission of uncharged crimes, the man contends that he did not put in issue his intent to commit the crimes and did, in fact, admit his submission of the bills to the medical insurance, though he did not admit the illegality.
The man consequently urges the Supreme Court erred in admitting any evidence of uncharged crimes. Based on records, the man’s strategy was to show that he billed the insurance in good faith and that he believed that the services he provided were authorized based on the wording of the procedure codes.
With regards to the man claims that the insurance procedure code is vague and it is unclear whether a three dimensional cast is required or whether the foot outline procedure done by the man falls is within its parameters. However, the court rejects the contention.
Sources revealed that the use of terms employed in procedure code are recognized technical terms and obviously eliminate charging for a cast of a patient’s foot when only a tracing of the outline of a foot is done, followed by supplying the patient with a stock orthotic device. The latter will obviously falls under the rubric of another procedure code.
The complainant agree with the man’s contention that the grand larceny sentence should run concurrently with the other charges since the grand larceny charge was a continuing crime and the crime of offering a false instrument for filing arose from the same incident.
The court however rejects the man’s contention that his sentence was unduly cruel and excessive. The man has not shown the existence of extraordinary situations or abuse of Supreme Court’s judgment warranting their intervention.
Consequently, the court ordered to modify the previous decision by providing the man’s sentences run concurrently. The matter will also remitted to the Supreme Court for further proceedings and, as so modified, it is affirmed.
Nowadays, there are still young individuals and several persons in our community who do their unlawful action just to earn money. Whenever you need legal representation in court, you can seek assistance from the NYC Criminal Lawyer. You can also opt to have a New York City Grand Larceny Attorney at Stephen Bilkis and Associates.