New York Criminal Lawyer Blog
The Facts of the Case:
A New York Criminal Lawyer said on 16 May 1984, defendant was convicted by the County Court of Nassau County of grand larceny in the second degree (three counts), grand larceny in the third degree, petit larceny, commercial bribing or bribery in the first degree and scheme to defraud in the first degree or bank fraud, upon jury verdicts, and attempted grand larceny in the second degree (three counts), upon his pleas of guilty.
Defendant then filed an appeal from the aforesaid six (6) judgments of criminal convictions and contends that the Attorney-General was not properly authorized to conduct Grand Jury proceedings in accordance with Executive, and that the additional Grand Jury which returned the indictments against him was not impaneled in accordance with the rules of the court.
The Issues of the Case:
The first issue that must be resolved by the court is whether or not there was a violation of the Executive Law when the request for investigation and prosecution was made and signed on behalf of the Superintendent of Insurance. A New York Criminal Lawyer said the second issue is whether or not it was improper for the County Court Judge to issue an order authorizing the impaneling of an Attorney-General’s Grand Jury. Lastly, the third issue is whether or not every theory or definition of larceny outlined in Penal Law which was charged to the jury must be sustained by the evidence in order to support defendant’s conviction for grand larceny in the second degree; along with this issue is the argument that one of the four theories so charged was not established by the evidence, that a criminal conviction must be reversed where the jury may have determined guilt based upon a theory not supported by the evidence; and that there was insufficiency of the evidence concerning the second degree grand larceny by bad check.
The Ruling of the Court:
The court finds that the defendant’s arguments are insufficient to require a dismissal of the six indictments upon which he was convicted.
First, under the Executive Law, the Attorney-General has the power and authority to investigate and prosecute the alleged commission of any indictable offense or offenses in violation of the law in relation to any matters connected with the Insurance Department upon request of the Superintendent of Insurance. This provision should not be construed strictly, but read in a sense to accomplish the purpose intended. Here, the request in issue appears on the letterhead of the Deputy Superintendent and General Counsel to the Insurance Department. A New York Drug Possession Lawyer said the printed name and title appears at the closing of the letter, followed by the signature written for the superintendent. In the absence of any mandated form in the Executive Law for such requests, there was sufficient authorization in the Insurance Law for the form used. Insurance Law provides that any order of the Superintendent which must be in writing may be signed by the superintendent or by his authority. In this case, the request at issue is presumptively by the superintendent’s authority, as a presumption of regularity is applicable to all official acts of individuals functioning under an oath of office.
Second, there was no violation of any statute when the County Court Judge issued an order which authorized the impaneling of an Attorney-General’s Grand Jury. Although not in strict compliance with Appellate Division, Second Department Rule which permits additional grand juries to be drawn and impaneled upon the order of the administrative judge having jurisdiction over the courts in each county, the order in controversy was in substantial compliance with said rule. Here, the Administrative Judge of Nassau County, by written directive in the form of an Interdepartmental Memo, delegated the authority to impanel additional Grand Juries, not to exceed six in number, to the Administrative Judge of the County Court on the same date that the court rule became effective. Although the directive did not take the form of an order, it is a mere technical defect. Defendant does not claim any prejudice from the administrative procedure employed. The purpose of the law which permits the Appellate Division of each judicial department to adopt rules governing the number and terms of which Grand Juries shall be drawn was for a more flexible administrative approach. If strict compliance was to be observed, it would defeat that purpose and elevate form over substance. It must be noted here that there was no danger of prejudice from a Vest Pocket Grand Jury, as the extension of an existing Grand Jury was not in issue.
Third, the court finds that each of the four theories of larceny upon which the jury was instructed was proven beyond reasonable doubt. A New York Sex Crimes Lawyer said that Penal Law provides that a person is guilty of grand larceny in the second degree when he steals property with a value in excess of $1,500 by committing the crime of issuing a bad check; and the crime of issuing a bad check or a person is guilty of issuing a bad check when as a drawer or representative drawer, he utters a check knowing that he or his principal, as the case may be, does not then have sufficient funds with the drawee to cover it, and he intends or believes at the time of utterance that payment will be refused by the drawee upon presentation, and payment is refused by the drawee upon presentation. Here, the circumstantial evidence presented was sufficient to establish, beyond a reasonable doubt, defendant’s knowledge of insufficient funds at the time of utterance. In fact, a representative of an Automobile Insurance Plan testified that in January 1981 the plan’s certified check requirement was reimposed upon defendant’s multiple brokerage corporations due to the number of checks returned unpaid by the drawee banks. Notwithstanding that defendant had been placed upon the certified check requirement several months before, and that the requirement had been lifted based upon defendant’s assurances that no additional checks drawn after 1 October 1980 would be returned for insufficient funds, defendant’s various corporate checks continued to be dishonored. Evidences of approximately 1,000 dishonored checks dated 7 October 1980 through 25 May 1981 returned to the plan by insurance carriers were presented. The checks were drawn on an almost daily basis throughout the period, and, accordingly, the inference that utterance of new checks was occurring simultaneously with dishonor of older checks is compelling and inescapable. On the basis of the dishonored checks alone, to conclude that defendant was unaware of insufficient balances is simply absurd and illogical. Moreover, representatives of the three insurance carriers named in the indictment as victims of defendant’s larceny testified to amounts unrecovered by reason of the dishonored checks, viz: a collection clerk of insurance company-one testified that defendant’s checks in the amount of $5,000 were returned unpaid for insufficient funds or account closed; a supervisor of insurance company-two testified to checks totaling $16,581.30 returned unpaid after deposit; and an employee of insurance company-three testified that checks totaling between $27,000 and $28,000 were returned unpaid. Photocopies of the dishonored checks were introduced into evidence.
Furthermore, defendant’s employees testified that he was kept informed of daily bank balances, that checks were issued upon insufficient funds, and that defendant’s authorization was required to issue checks. Undoubtedly, the totality of the circumstantial evidence is indeed sufficient to establish defendant’s guilt of grand larceny by bad check beyond a reasonable doubt.
On defendant’s remaining contentions, the court has considered them but finds them either without merit or unpreserved for review.
In sum, the judgments are affirmed, and the matter is remitted to the County Court of Nassau County for further proceedings.
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