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PETITIONER, WHO HAD WORKED FOR THE TOWN FOR 32 YEARS, TOOK $181 FROM PETTY CASH AND LEFT A NOTE INDICATING SHE OWED MONEY TO THE FUND; THE LARCENY AND THEFT CHARGES WERE ANNULLED; TERMINATION WAS TOO SEVERE A PUNISHMENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the theft and larceny charges against petitioner should be annulled and termination of petitioner’s employment with the town was too severe a penalty. Petitioner took $181 from petty cash but left a note indicating she owed money to the fund:

We agree with petitioner that the determination of guilt on charges 1 and 2, which charged her respectively with theft and larceny, is not supported by substantial evidence. A person “commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof” (Penal Law § 155.05 [1]). “Theft” is a synonym of “larceny” (Black’s Law Dictionary 1780 [11th ed 2019]). We conclude that petitioner’s actions, particularly the creation and placement of the note, are inconsistent with an intent to deprive or appropriate (see § 155.00 [3], [4] …). …

… [I]n light of petitioner’s 32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude … , we conclude that the penalty of termination is ” ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” … . Matter of Gray v LaFountain, 2021 NY Slip Op 02624, Fourth Dept 4-30-21

 

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