Articles Posted in Grand Larceny

The Court was presented with two distinct issues which shall be resolved herein. In the first case, the People filed an appeal from an order of the County Court, Nassau County dated July 6, 1992, which granted that branch of the defendant’s omnibus motion which was to dismiss all counts of indictment which pertained to him.

The Court now reversed of the lower court’s Order, granting the criminal defendant’s motion to dismiss. The Court stated that branch of the defendant’s motion which was to dismiss the indictment against him is denied, and the matter is remitted to the County Court, Nassau County, for further proceedings on the indictment.

Contrary to the County Court’s determination, we find that the evidence presented to the Grand Jury was legally sufficient to establish a prima facie case against the defendant. In the context of a Grand Jury proceeding, the sufficiency of the People’s presentation is determined by inquiring into whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury.

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Records reflect that a man is charged with Robbery in the different degrees, Grand Larceny in different degrees.

Upon stipulation by both parties, this Court conducted a Huntley, Mapp, Dunaway and Wade hearing. The Huntley portion of the hearing pertained to a written statement allegedly made by the accused to the Police after his arrest. The Mapp portion of the hearing was regarding a Blackberry cellular phone which was allegedly seized from the criminal defendant. The Dunaway portion of the hearing was regarding the probable cause to arrest the defendant in his grandmother’s apartment. The Wade portion of the hearing was regarding a photo array which was shown to the complainant.

During the trial, a Detective testified that he was notified by the Police Department that a pedestrian robbery had occurred at approximately 7:30 p.m., at a given location. Detective immediately proceeded to that location. Upon arriving at the scene, Detective with Police Officers, and with the two complainants. The criminal complainants informed the Detective that they were walking along the Road, when a car pulled up and three men jumped out of the car and approached them. The complainants told the Detective that one of the individuals, described as a “light-skinned male black,” pulled out a dark colored handgun and demanded their cellular phones, money and valuables. One of the complainant told the Detective that the men took his Blackberry cellular phone. The complainants said that the men then got back into the car and drove away. The Detective recorded the phone number of the cellular phone, as a result of the information which he received from the complainants, he applied for a Pen Register and Trap and Trace Order, regarding complainant’s cellular phone. The Order was granted and authorized the Police to use Global Positioning Satellite (G.P.S.) technology to track the location of the cellular phone.

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This motion for the discovery of grand jury minutes was originally brought in the Criminal Term of this court but transferred to Special Term. The motion by plaintiff is made within the framework of a civil action for false arrest, false imprisonment and malicious prosecution and although the motion was originally captioned in the criminal action, the court will nonetheless deem this application to have been so brought and thus will consider the merits.

Plaintiff was indicted for grand larceny in the second degree. On October 9, 1973, on motion by defense counsel at the end of the People’s case, the indictment was dismissed. The instant action was commenced in March 1974 against the complainants in the criminal case. An order of the court, made after hearing the District Attorney, is required for the disclosure of grand jury testimony.

The issue precisely framed is whether a plaintiff in a civil action for malicious prosecution can discover the grand jury testimony of the complaining witnesses in the criminal case which forms the basis of the action. In evolving rules governing the use of grand jury testimony, courts have generally refused to permit disclosure unless the moving party was connected with law enforcement.

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These cases are criminal charges of grand larceny presented before the proper courts.

Records reveal that in the first case, an indictment was found for the crime of robbery alleged to have been committed on July 16, 1953, at a Bar and Grill. Two men were arrested and held to await the action of the Grand Jury. It also developed that a third man was also implicated and he was indicted and later dealt with as a Youthful Offender. The first two accused were at that time in custody in connection with another crime. The Grand Jury indicted them, for the crimes of robbery in the first degree, grand larceny in the first degree and assault in the second degree with intent to commit the crimes of robbery and grand larceny.

They now filed a motion to dismiss the indictment against the three on the grounds that these three were not given a speedy and prompt trial, and that any delays were not with the specific consent of the three, pursuant to Section 668 of the Code of Criminal Procedure.

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According to the Property Clerk’s invoices, on May 15, 2008 and May 19, 2008, Detective YL of the New York City Police Department’s Major Case Squad seized from Petitioner various items of property and classified them as Investigatory under Property Clerk’s invoices P002313, P002358, P002361, P002363, P002364, and P002360, hereinafter the subject property. According to respondents, Petitioner was arrested by Detective YL on July 17, 2008, and charged with violating New York Penal Law Sections 155.40, Attempted Grand Larceny in the Second Degree; 190.80, Identity Theft in the First Degree; 170.10 Forgery in the Second Degree; 155.35 Grand Larceny in the Third Degree; 190.26(1), Criminal Impersonation in the First Degree; 190.26(2), Criminal Impersonation in the Second Degree; and 155.30, Grand Larceny in the Fourth Degree. On March 26, 2009, Petitioner pleaded guilty to two counts of violating New York Penal Law Section 190.80, Identity Theft in the First Degree, and was sentenced on May 28, 2009 to consecutive terms of 4 to 8 years.

On June 9, 2009, Petitioner filed a motion with the Criminal Court in Richmond County seeking the return of the subject property, which was opposed by the Richmond County District Attorney’s Office. By decision and order dated July 13, 2009, The Supreme Court, Richmond County denied Petitioner’ motion, writing that the motion lacks any basis in statutory or common law in both its form and chosen forum, and that Petitioner failed to provide an affidavit with sworn allegations of fact, hereinafter the Criminal Court decision.

On August 4, 2009, an inquiry was made on behalf of Petitioner with the New York City Police Department’s Property Clerk for the subject property, and the Property Clerk issued an acknowledgment of the demand. Upon receiving an inquiry, the Property Clerk contacted Detective YL to determine the status of the subject property. In memorandum dated August 11, 2009, Detective YL changed the classification of the subject property from Investigative to Arrest Evidence.

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An appeal was made by the defendant from a judgment of the Criminal County Court convicting him of grand larceny in the third degree (four counts) and scheme to defraud in the first degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of 1 to 3 years, 1 1/3 to 4 years, 1 2/3 to 5 years, and 2 to 6 years imprisonment, respectively, on each of his convictions of grand larceny in the third degree, and an indeterminate term of 2 to 6 years imprisonment on his conviction of scheme of bank fraud in the first degree, to run concurrently with the terms of imprisonment imposed on the convictions of grand larceny in the third degree.

The judgment is modified, on the law, by reducing the sentence imposed on the conviction of scheme to defraud in the first degree from an indeterminate term of 2 to 6 years imprisonment to an indeterminate term of 1 1/3 to 4 years imprisonment; the judgment is affirmed.

The defendant contends on appeal that the jury verdict was not supported by legally sufficient evidence. This contention is unpreserved for appellate review as the defendant’s motion for a trial order of dismissal was general in nature. In any event, viewing the evidence in the light most favorable to the prosecution, it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of factual review power, the verdict of guilt was not against the weight of the evidence.

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The defendant man contends that the evidence against him was insufficient, as a matter of law, to establish guilt beyond a reasonable doubt. Viewed in a light most favorable to the People, the record establishes that a woman, the complaining witness, lent money to the defendant. Concededly the defendant did not repay any part of the loan. Although the lender was motivated by a desire that the criminal defendant purchase a certain grocery store with the loan proceeds, the defendant’s failure to do so does not change the nature of the transaction.

The essence of the crime of larceny by embezzlement is the conversion by the embezzler of property belonging to another which has been entrusted to the embezzler to hold on behalf of the owner. There is a distinction between the refusal to pay a valid debt and the crime of larceny by embezzlement. If the money was not given to the criminal defendant in trust, he was free to use it for any purpose. On the record before us, the People failed to establish a fiduciary arrangement. As the record indicates, an interest bearing loan was intended by the parties, and upon delivery of the funds to the defendant they became his property. Thus there was no misappropriation of property from the owner and the mere failure to pay one’s debts is not a crime.

Accordingly the defendant’s conviction must be reversed and the indictment must be dismissed since the evidence is legally insufficient to establish beyond a reasonable doubt that the defendant was guilty of larceny by embezzlement.

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This is an Appeal by the defendant from a judgment of the Supreme Court, Suffolk County, convicting him of attempted robbery in the first degree, robbery in the first degree (two counts), and grand larceny in the second degree, upon a jury verdict, and imposing sentence.

A Suffolk County Grand larceny attorney said that in 1986, the defendant committed or attempted to commit a number of armed robberies at various locations in Suffolk County. Thereafter, the defendant was stopped by the police in Queens County on an unrelated matter and was subsequently charged in Queens with inter alia, criminal possession of a sawed-off shotgun and criminal possession of a stolen vehicle. As it happened, the weapon had been used in the Suffolk robberies and the vehicle had been stolen during the course of the last robbery.

The defendant pleaded guilty in Queens County to criminal possession of a weapon in the third degree and was sentenced to an indeterminate term of one to three years imprisonment. He was thereafter arraigned in Suffolk County on the instant charges. At the time of the trial, he had served 20 months in prison on the Queens County conviction.

Petitioner was charged under a governor’s warrant with being the South Carolina fugitive, who allegedly escaped from the Anderson South Carolina Stockade in 1976. The fugitive was serving a sentence of seven years for passing several bad checks and a probation violation from a prior grand larceny. Petitioner has lived continuously at the same address in Suffolk County, New York since 1983. He was married in 1987, helping to raise his wife’s three children from a prior marriage. He and his wife also had two children of their own in 1988 and 1992.

A Suffolk County Criminal lawyer said that in 1993, Petitioner was arrested on an extradition demand from South Carolina. As a result of information thereafter provided to then South Carolina Governor, the Governor chose not to pursue the extradition.

Twelve and a half years later in October, 2005, while returning from a vacation, Petitioner was arrested at JFK Airport on a computer entry of his being wanted in South Carolina. When the necessary paperwork was not filed within ninety (90) days, the resultant pending charge was dismissed in Criminal Court, Queens County 2006. Petitioner returned to his everyday life.

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This is a Criminal case where the defendant moves to dismiss the indictment against him upon the ground that there is insufficient evidence to sustain any of its 44 counts charging Forgery in the Second Degree and the single count of Grand larceny in the Second Degree.

In a case where herein defendant was the defendant, the Court dismissed a single count indictment for Second Degree Forgery with respect to one check in the amount of $250.00. That check had been made payable to a person by the defendant who endorsed with that name and then his own. Larceny was not charged.

The Court pointed out in that opinion that defendant could create a fictitious payee, intending him to have no interest in the check and then negotiate it as a bearer instrument. There was no evidence in that case that the defendant had the intent to defraud, deceive or injure, necessary elements of Forgery in the Second Degree.

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