New York Criminal Lawyer Blog

On August 24, 2010, after a jury trial, defendants, AR and HT, were convicted of Grand Larceny in the Fourth Degree (PL § 155.30[5]) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).

Defendant, AR, moves, pursuant to CPL § 440.10, to vacate the conviction, on the ground that he was deprived of his constitutional right to effective assistance of counsel.

On December 7, 2009, the Grand Jury indicted defendant, HT and KJ, upon the theory that defendant and HT served as accomplices to KJ, the principal actor in a subway pickpocketing. The prosecution alleges that as KJ removed an iPhone from the knapsack of an undercover police officer, defendant and HT used their bodies to conceal KJ’s actions.

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In this case, we are asked whether a three- or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of the school board. We hold that the six-year limitations period in CPLR 213(7) is applicable and, therefore, this action was timely commenced.

In September 2002, an accounting firm hired by plaintiff XXX School District discovered irregularities in the district’s financial records. An audit revealed that Mr. GM, the assistant superintendent for business, had stolen $223,000 from district accounts. The XXX School District Board of Education (the Board) was notified of Mr. GM’s misconduct and it decided to allow Mr. GM to repay the misappropriated funds along with attorney’s fees and accounting costs and retire. The Board, however, did not notify law enforcement authorities or state officials about Mr. GM’s criminal activities, nor did it publicly disclose her illegal conduct.

Unfortunately, the theft by Mr. GM turned out to be just one component of a long-running conspiracy to loot the school district’s coffers. After Mr. GM left her post, information about additional missing funds surfaced and eventually a criminal investigation was undertaken by the Nassau County District Attorney’s Office. In June 2004, Mr. GM was arrested for grand larceny in the first degree for stealing more than $1 million from the school district. The investigation also implicated the school district’s superintendent (Mr. TX) and an account clerk (Ms. D, who was Mr. GM’s niece), and they too were arrested for grand larceny. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Mr. GM had stolen over $4.6 million; Mr. TX had taken more than $2.4 million; and Ms. D had received about $300,000. In total, various sums had been funneled to more than two dozen people.

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On August 24, 2010, after a jury trial, defendants, AR and HT, were convicted of Grand Larceny in the Fourth Degree (PL § 155.30[5]) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40).

Defendant, AR, moves, pursuant to CPL § 440.10, to vacate the criminal conviction, on the ground that he was deprived of his constitutional right to effective assistance of counsel.

On December 7, 2009, the Grand Jury indicted defendant, HT and KJ, upon the theory that defendant and HT served as accomplices to KJ, the principal actor in a subway robbery pickpocketing. The prosecution alleges that as KJ removed an iPhone from the knapsack of an undercover police officer, defendant and HT used their bodies to conceal KJ’s actions.

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The two cases hereunder involves an appeal on conviction involving the crime of grand larceny.

The first was an appeals by (1) criminal defendant NJ from a judgment of the County Court, Nassau County, rendered October 14, 1983, convicting him of grand larceny in the second degree, attempted grand larceny in the second degree, and falsifying business records in the first degree, upon a jury verdict, and imposing sentence; and (2) defendant DC from a judgment of the County Court, Nassau County, rendered September 16, 1983, convicting her of grand larceny in the second degree and falsifying business records in the first degree, upon a jury verdict, and imposing sentence.

Judgments affirmed, and the matters are remitted to the Criminal County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd. 5).

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The criminal defendant is a physician who had been employed by SG Company located in Nassau County. The company had a contract with UMD, Inc., covering its employees, and some of these employees or their wives were treated privately by the defendant after he left SG’s service. The People charged that, although the defendant treated them in a number of instances for ailments not covered by SG’s agreement with United Medical, he filed statements of claims with the latter in which he recited that he had treated them for bursitis, an ailment which was covered, and that, on the basis of such false claims involving seven patients he received $492 from UMD under the Blue Shield portion of the contract. This proof furnished the predicate for a conviction of grand larceny criminal counts of filing false insurance claims (Penal Law, § 1202, subd. 1.)

The principal witnesses against the defendant were the patients whom he treated, and the primary question on this appeal revolves about whether those witnesses were the defendant’s accomplices and whether the trial court properly charged on this subject.

In general, the proof adduced was that a number of SG employees or their wives went to see the defendant because they were suffering from such varied complaints as nerves, a carbuncle on the foot or a pain in the stomach; that the defendant treated for such ailments, which were not covered by Blue Shield; and that he thereafter filed statements of claims with UMD in which he declared that those patients were suffering from bursitis and that he treated them therefore by needling the bursa on five or six occasions. The several patients in question testified that the defendant had handed them Blue Shield claim forms which they either signed in blank, or without reading; that they had not been suffering from bursitis; that they had not been treated for such ailment; and that they had not received any injections or needling for bursitis. It appeared, in one or two instances, that, when the patient had paid the defendant for his services, the latter had submitted a claim for a larger amount and out of such sum had remitted to the patient the smaller amount which the latter had paid him. Testifying on his own behalf, the defendant readily admitted that he had filled out the forms and that he had been reimbursed by the UMD under Blue Shield. He insisted, however, that he had throughout acted honestly and properly; that the patients who testified against him actually suffered from bursitis; and that he treated them for bursitis and gave them the injections described in the claims.

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The question raised on this appeal is whether the trial court properly denied defendant’s motion to vacate a judgment of conviction, grounded on claims of prosecutional misconduct, juror misconduct and misrepresentation by a prosecution witness, without initially conducting an evidentiary hearing. We hold that the facts of this case do not demonstrate that the trial court abused its discretion as a matter of law and, therefore, affirm the denial of the motion to vacate.

Defendant was arrested and charged with the murder of his wife, SF. He was also charged with grand larceny for stealing more than $450,000 worth of securities, jewelry and currency from his wife’s estate following her death. During defendant’s 11-week jury trial, the criminal prosecution sought to prove that defendant had killed his wife by injecting her with multiple doses of Demerol over the course of two days, June 17 and June 18, 1975. On December 15, 1976, the trial concluded and defendant was found guilty of murder in the second degree and grand larceny in the second degree. Defendant was sentenced on January 26, 1977 to concurrent terms of not less than 25 years to life imprisonment on the murder count and not more than 7 years on the grand larceny count. On June 5, 1978, the Appellate Division affirmed. Leave to appeal to this court was denied on June 29, 1978.

In January, 1980, more than three years after the trial was concluded, defendant commenced the instant proceeding by bringing a motion in the Nassau County Court, pursuant to CPL 440.10, seeking an order vacating the judgment of conviction. Criminal Defendant’s motion was denied without a hearing. A divided Appellate Division affirmed.

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Defendant’s motion for an order directing that the People make disclosure, directing that they serve a bill of particulars, dismissing the accusatory instrument as facially defective, dismissing it on the ground that prosecution is barred by a legal impediment, dismissing it on the ground that there is a lack of jurisdiction, dismissing it for failure to provide a speedy trial, suppressing identification testimony, and precluding or suppressing use of any statement Criminal Defendant made to police, is granted to the extent that the accusatory instrument is dismissed as facially defective.

Defendant was originally accused by felony complaint of grand larceny in the 4th degree, a class E felony. The complainant is Police Officer who thereby attests upon information and belief that, on August 20, 2004, Criminal Defendant removed a black 2004 GMC from an auto collision shop known as K&G Garage without making payment for the parts and repairs performed on it, that the Defendant drove around the employee who was attempting to stop her from leaving by placing his body in her path, that the Defendant owed the victim $3,648.66, and that Defendant left a check in the amount of $1,000 which, when deposited by the victim was returned for insufficient funds. By order dated January 21, 2005, the court converted the felony complaint to an information through notations and directed that upon the filing of the information the felony charge of 155.30(1) is reduced to the non-felony charge of 155.25, i.e. stealing property. The felony complaint itself bears the handwritten note converted to ct 2, 155.25. According to the notations on the court file, the People, also on January 21, 2005, filed a supporting deposition, which was annexed to the felony complaint, and Defendant was arraigned on the document, which thus became an information. By that supporting deposition, JW attests in pertinent part that: “I am the owner of K&G Garage, 656 Rockaway Tpke., N. Lawrence and was advised by one of my employees, Thomas Watson, that as he was moving cars around the shop this morning a female white, whom he knows to be the owner of a GMC 2004 Envoy Black, Vin No.1GKDT13S042349492, AK, did arrive at the shop and advised that she was here to pickup her car. My employee advised her that she would have to wait for me. With that, the female jumped into her auto and fled with it out of my lot, N/B Rockaway Tpke. I currently have an outstanding balance of $2175 plus parts 1201.72, total $3648 including tax, for a mechanics lien on this vehicle. I had advised the owner yesterday, that there was an outstanding balance. At that time she did possess a Florida Reg. Plate for the car. Today, when she fled with the car, there were no plates on the car. As she fled with the car, this female threw a white envelope containing a Fleet Bank check, with no name, signed but the signature was illegible, check # 94966-98094-0095 in the amount of $1,000.00. I do not give anyone permission to remove any car from my possession, without making full and complete payment for the work completed. I request the arrest of AK.”

This case, and others then pending against this criminal Defendant, were thereafter adjourned numerous times for assorted reasons. All of those other cases have been disposed of. Defendant has declined to make restitution as part of any plea agreement in this case, which then proceeded toward trial. But, by notice that is undated, Criminal Defendant made the present motion for the items of relief specified above. Because of my determination that the accusatory instrument is facially defective, I do not reach Defendant’s other requests for relief.