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DEFENDANT, PRETENDING TO BE SOMEONE ELSE, TOOK DELIVERY OF TIRES AND FALSELY SIGNED THE INVOICE; THE DEFENDANT WAS PROPERLY SENTENCED TO CONSECUTIVE TERMS OF INCARCERATION FOR LARCENY AND FORGERY; THE CRITERIA FOR CONSECUTIVE AND CONCURRENT SENTENCES EXPLAINED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined consecutive sentences were properly imposed for defendant’s larceny and forgery convictions:

… [T]he Exxpress Tire Delivery Company received a telephone order from Basil Ford Truck Center by someone identifying themselves as Joe Basil Jr., for next-day delivery. The following day, … the driver called a number … for “Joe Junior” for additional delivery instructions. The man who answered the call told the driver to take the tires to a business adjacent to the Basil Ford Truck Center. When the driver arrived at the location he saw “a truck with a trailer” parked “on the side of the building” with a man standing next to it. He asked the man—who he identified in-court as defendant—”if he was taking the tires for delivery,” to which the man responded “yes.” Defendant … told the driver that he was an employee of the Basil family. The two loaded the tires onto the trailer and the driver then presented defendant with the tire invoice, which defendant falsely signed: “Joe Basil.” * * *

… [I]n accordance with section 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” … .

Under the first prong, “where the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” … . * * * Here … defendant accomplished the taking once the driver loaded the tires onto defendant’s trailer, which preceded defendant falsely signing the invoice … .

As to the second prong, courts “first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” … . * * *

… [B]ecause forgery is not the exclusive means to accomplish a larceny by false pretenses, forgery is not “a necessary component” of the larceny count “in the legislative classification and definitional sense” … . … [U]nder this prong, we do not consider “the act-specific circumstances and proof of a crime” … . People v McGovern, 2024 NY Slip Op 05242, CtApp 10-24-24

Practice Point: Consult this decision for an explanation of the criteria for consecutive versus concurrent sentences where two crimes stem from closely related actions—here taking possession of property by false pretenses (larceny) and then falsely signing an invoice for the property(forgery).

 

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