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VIOLATION OF CIVIL CONTEMPT ORDER PROPERLY ADMITTED IN GRAND LARCENY TRIAL TO SHOW LARCENOUS INTENT.

The Fourth Department, over a two-justice dissent, determined defendant’s violation of a civil contempt order was properly admitted in defendant’s grand larceny trial to show larcenous intent:

The … order directed defendant’s businesses to turn over all monies they had received as a result of defendant diverting credit card proceeds from Webster Hospitality Development LLC (WHD), a company in which defendant held majority ownership and which was in receivership, to undisclosed bank accounts maintained for defendant’s businesses. Contrary to defendant’s contention, the contempt order does not constitute a finding that defendant stole the money; rather, it demonstrates that defendant’s businesses failed to abide by the earlier order to return money to WHD and to provide certain documentation to the receiver. We thus conclude that the contempt order was properly admitted as relevant evidence of defendant’s intent to deprive WHD of the money by “withhold[ing] it or caus[ing] it to be withheld from [WHD] permanently” (§ 155.00 [3]; see People v Molineux, 168 NY 264, 293). Moreover, we note that “[l]arcenous intent . . . is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant’s actions’ ” … . Here, the contempt order had significant probative value inasmuch as it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive WHD of the diverted money permanently. The court therefore properly concluded that “the probative value of the evidence outweighed its prejudicial effect” … . People v Frumusa, 2015 NY Slip Op 09718, 4th Dept 12-31-15

CRIMINAL LAW (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/EVIDENCE (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/PRIOR CRIMES AND BAD ACTS (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/MOLINEUX EVIDENCE  (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)

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Defendant’s Statement Was Circumstantial Evidence of the Taking Element of Grand Larceny Because an Innocent Inference from the Statement Was Possible; Video Surveillance Was Direct Evidence of the Taking Element Despite Defendant’s “Innocent” Explanation of His Actions

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined video surveillance showing defendant first hiding and then rifling through the victim's purse was direct, not circumstantial, evidence of the taking element of grand larceny (despite the defendant's non-criminal explanation of his actions). The court also determined the defendant's statement “I don't have it, but I can get it” (made when asked about the purse) was circumstantial evidence of the taking element because an innocent explanation for having the purse could be inferred from the statement. Because both direct and circumstantial evidence of grand larceny was presented, the circumstantial-evidence jury instruction was not required:

It is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence … . By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given … .

We agree with defendant that his statement to the prosecution witness that he did not have the purse but could get it was not direct evidence of his guilt. A defendant's statement is direct evidence only “if it constitutes 'a relevant admission of guilt' ” … . * * *

Here, defendant's statement — that he did not have the purse but could get it — was not a direct admission of his guilt of larceny. Rather, defendant's statement was also consistent with an inference that although he did not steal the purse, he knew where the purse was located and thought he could obtain it. Inasmuch as his statement merely included inculpatory facts from which the jury may or may not have inferred guilt, his statement was circumstantial rather than direct evidence … .

We agree with the People, however, that the surveillance video constituted direct evidence of defendant's guilt of larceny. The “taking” element of larceny “is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights” … . People v Hardy, 2015 NY Slip Op 08369, CtApp 11-18-15


Several Similar Thefts from the Same Store Constituted a Single, Continuing Crime

The Second Department, over a dissent, determined defendant, who stole items from a store on a series of separate occasions, had committed a continuing crime and therefore was properly prosecuted for stealing merchandise worth more than $1000.00:

The evidence presented at trial demonstrated that the defendant took similar expensive electronic merchandise from the same store on each occasion, under virtually the same circumstances, and with the assistance of the driver of the minivan. Contrary to the position of our dissenting colleague, we find that this evidence sufficiently established that the defendant stole merchandise “with a single [ongoing] intent, carried out in successive stages” (People v Rossi, 5 NY2d at 401), and that this was not merely a series of distinct petty thefts (see People v Daghita, 301 NY 223, 225 [affirming the defendant’s conviction of a single continuing grand larceny where he stole a “considerable quantity of merchandise over a period of time” from the same store and “used a large portion of it to furnish his home and to outfit his family”]; see also People v Henderson, 163 AD2d 888; cf. People v Seymour, 77 AD3d 976, 980 [insufficient proof that two thefts from the same store constituted a common scheme or plan, where the defendant stole one television during the first incident, a variety of merchandise during the second incident, and each theft was perpetrated in a different manner, since “there was no evidence of the defendant’s intent to commit fraud or of his intent to engage in a plan of continuous fraud”]). People v Malcolm, 2015 NY Slip Op 06829, 2nd Dept 9-16-15

 

Indictment Dismissed after Trial as Multiplicitous and Duplicitous/Grand Larceny Can Not Be Based Upon the Violation of a Regulation that Is Civil in Nature

The Fourth Department reversed defendant’s conviction and dismissed the indictment in a prosecution alleging public assistance fraud in the operation of a daycare home.  The indictment charged the defendant with grand larceny, falsifying business records and offering a false instrument for filing.  Essentially, the charges alleged the defendant billed for services provided by an unlicensed care-giver, and billed for services which were not provided.  The Fourth Department held that the entire indictment was rendered multiplicitous and duplicitous by the trial evidence.  In addition, the court determined that the grand larceny count could not be based upon the violation of a regulation requiring the presence of a licensed assistant.

With respect to multiplicity and duplicity, the court wrote:

Prosecutors and grand juries must steer between the evils known as duplicity’ and multiplicity.’ An indictment is duplicitous when a single count charges more than one offense . . . It is multiplicitous when a single offense is charged in more than one count . . . A duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his [or her] ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other. If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he [or she] actually committed” … . An indictment that is not duplicitous on its face may be rendered so based upon the trial evidence … .

Here, the People correctly concede that counts 5 through 7, 9, 15 through 17, and 19 of the indictment are duplicitous and multiplicitous inasmuch as they are based on “distinct but not identifiable vouchers.” Those counts are all based on the same time period and the same vendor number and, according to the People, there is no way to identify which voucher refers to which count … .  …

With respect to the remaining counts of the indictment, we agree with defendant that counts 8, 10, 18, and 20 of the indictment were rendered duplicitous by the trial evidence.. . . As noted above, the People alleged that defendant submitted vouchers for monies to which she was not entitled because, at various dates and times, she (1) billed for hours when neither she nor her certified assistant were at the daycare, and (2) she billed for hours when the children were not at the daycare. There is no basis in the record to determine, with respect to each of those counts, whether the jury convicted defendant based upon the first act (billing for hours when the children were watched by uncertified assistants) or the second act (billing for hours when the children were not at daycare), or whether certain jurors convicted defendant upon the former and others upon the latter. Thus, “it is impossible to verify that each member of the jury convicted defendant for the same criminal act”… .

With respect to grand larceny based upon the violation of a regulation, the court wrote:

Count one of the indictment alleges that, between October 1, 2007 and July 30, 2008, defendant “stole property having a value in excess of [$3,000], to wit: a sum of money, belonging to [DSS].” Under Penal Law § 155.05 (1), “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself [or herself] or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof.” Larceny includes “obtaining property by false pretenses” (§ 155.05 [2] [a]). A defendant commits larceny by false pretenses when he or she “obtain[s] possession of money of another by means of an intentional false material statement about a past or presently existing fact upon which the victim relied in parting with the money” … .

Here, the People alleged that defendant committed larceny by false pretenses by charging for times when unlicensed assistants were watching the children in violation of OCFS regulations, and by billing for times when the children were not receiving daycare services. We question whether submitting vouchers for daycare services rendered by an uncertified assistant falls within the definition of larceny. OCFS’s regional manager testified that, although it is a “regulatory violation” for an uncertified assistant to watch children at a group day care, the regulations do not state that daycare providers are not permitted to bill for services rendered by an uncertified assistant. Indeed, the DSS special investigator referred to those hours as “billable” on his charts, although unauthorized by the regulations.

Even assuming, arguendo, that billing for services provided by an uncertified assistant constitutes a “wrongful[ ] tak[ing]” within the meaning of Penal Law § 155.05 (1), we note that “[c]onduct which is wrongful in the civil context is not necessarily wrongful’ within the meaning of the larceny statutes” … .  People v Casiano, 2014 NY Slip Op 03362, 4th Dept 5-9-14

 

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Grand Larceny 4th and Criminal Possession of Stolen Property 4th, as Those Statutes Relate to Credit/Debit Cards, Require the Theft and Possession of the Physical Card Itself, Not Merely the Unauthorized Use of the Credit/Debit Card Number—Other Offenses in the Penal Law Criminalize the Unauthorized Use of Credit/Debit Card Numbers

The Second Department, in a full-fledged opinion by Justice Balkin, determined that the crimes of grand larceny (4th degree) and criminal possession of stolen property (4th degree), as they relate to credit/debit cards, require the theft and possession of the physical card, not simply the use of the card number to make a purchase.  [The 1st Department recently reached the opposite conclusion.]  Here the juvenile (Luis) used his grandfather’s debit card number to purchase sneakers.  The Second Department noted that there are provisions of the penal law which criminalize the unauthorized use of credit/debit card numbers (without physical possession of the card), but those crimes were not charged here:

…[G]iven the text of the provisions at issue, the context of the law and its development over the years, we agree with Luis and the Presentment Agency that “debit card” as used in Penal Law §§ 155.30(4) and 165.45(2) means the physical card, not the intangible account information associated with it. We also agree that, at bottom, this case involves errors made when the petition was drafted. Luis’s acts undoubtedly violated provisions of the Penal Law, but not the provisions charged in the petition.

A person who appropriates account information is not immune from punishment. The legislature has enacted laws to protect account information, in addition to the laws relating to the cards themselves. Specifically, in chapter 619 of the Laws of 2002, the legislature amended or added sections to various statutes in order to address the problem of people who engage in identity theft or use other people’s personal information without authorization. That legislation added the crimes of identity theft in the third, second, and first degrees (Penal Law §§ 190.78, 190.79, and 190.80), as well as unlawful possession of personal identification information in the third, second, and first degrees (Penal Law §§ 190.81, 190.82, and 190.83). Later, the legislature added “aggravated identity theft” (Penal Law § 190.80-a; see L 2008, ch 226, § 2). These provisions, similar to the provisions at issue in this case, make the criminal possession of account information a completed crime; no proof is required that the information was actually used.

One of the crimes added in 2002, unlawful possession of personal identification information in the third degree (Penal Law § 190.81), directly proscribes what Luis did in this case when he used his grandfather’s debit card number, without permission, to buy sneakers * * *:

Thus, just as the legislature added credit cards to the penal provisions of the law when the use of credit cards became widespread, and added debit cards when the use of debit cards became widespread, it also added provisions related to the unauthorized possession of the intangible account information when technology demanded.

We also note that crimes relating to the theft or possession of cards or account information are distinct from the crimes committed when the cards or account information are subsequently misused; the subsequent misuse is an additional crime, distinct from the taking of the card or the obtaining of the numbers … . Matter of Luis C, 2014 NY Slip Op 08428, 2nd Dept 12-3-14

 

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Insufficient Proof of Value of Stolen Property, Evidence of Prior Crimes Improperly Admitted, Identification Testimony Improperly Admitted, Prosecutor Improperly Vouched for Witnesses—New Trial Ordered

In reversing the defendant’s grand larceny conviction, the Fourth Department determined the evidence of the value of the property was “conclusory” consisting only of “rough estimates” and was therefore legally insufficient.  The court also determined evidence of uncharged crimes and identification testimony should not have been admitted, and noted the prosecutor improperly vouched for the credibility of prosecution witnesses. With respect to the uncharged crimes and identification evidence, the court wrote:

…[W]e agree with defendant that County Court erred in allowing the People to introduce evidence concerning an uncharged burglary to prove his identity as the perpetrator of the burglary and petit larceny charged in the indictment. The instant crime is “not so unique as to allow admission of evidence of the [uncharged burglary] on the theory of the similarity of the modus operandi” … . The court further erred in admitting the testimony of a witness who identified defendant in an out-of-court photo array procedure and thereafter identified him in court. The People failed to satisfy their obligation pursuant to CPL 710.30 inasmuch as no statutory notice was given by the People with respect to their intent to offer “testimony regarding an observation of the defendant at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such” (CPL 710.30 [1]…). The errors in admitting evidence of the uncharged burglary and the identification of defendant are not harmless, considered singularly or in combination, inasmuch as the proof of defendant’s guilt is not overwhelming, and there is a significant probability that the jury would have acquitted defendant had it not been for either of the errors… . People v Walker, 2014 NY Slip Op 05254, 4th Dept 7-11-14

 

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Failure to Prove Defendant Did Not Have a Good Faith Belief He Had a Claim of Right to Property Precluded Larceny Conviction

The Fourth Department determined there was insufficient evidence to support a grand larceny charge based upon the defendant’s taking a jeep from his girlfriend’s residence.  Prior to defendant’s taking the jeep, his girlfriend had agreed to transfer it to him—an offer she subsequently told defendant was “off:” The Fourth Department held the People had not proven the defendant did not have a good faith belief that he had a claim of right to the jeep:

It is well established that “a good faith claim of right is properly a defense—not an affirmative defense—and thus, ‘the people have the burden of disproving such defense beyond a reasonable doubt’ ” … .A defendant is not required to “establish that he previously owned or possessed the property at issue in order to assert the claim of right defense” …. The test is whether a defendant had a “subjective[,] good faith” belief that he or she had a claim of right to the relevant property, not whether defendant’s belief was reasonable … . Based on the testimony of defendant’s former girlfriend, which is the only evidence that relates to the claim of right issue, we conclude that it was unreasonable for the jury to conclude that the People established beyond a reasonable doubt that defendant did not have a subjective, good faith basis for believing that the Jeep was his, and thus the verdict with respect to the grand larceny in the fourth degree count is against the weight of the evidence ….  People v Rios, 223, 4th Dept, 6-7-13

 

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Court’s Explanation of Lien Law Presumption (Where Money Held In Trust by Contractor and Allegedly Misused Can Be Deemed Larceny) Was Determined to Impermissibly Switch the Burden of Proof to the Defendant​

In reversing a larceny conviction, the Second Department explained that allowing the jury to consider the Lien Law presumption (where use of funds held in trust for purposes other than those of the trust can constitute larceny) as mandatory, rather than permissive, shifted the burden of proof to the defendant:

Pursuant to Lien Law article 3-A, a contractor who receives funds under a contract for the improvement of real property must hold the funds as a trustee, and if the contractor applies trust funds for any purpose other than the purposes of the trust and fails to pay a trust claim within 31 days of the time it is due, he or she may be guilty of larceny (see Lien Law §§ 70, 71, 79-a[1][b]…). The trial court instructed the jury, in accordance with Lien Law § 79-a(3), that “[f]ailure of the trustee to keep books and records required by this section shall be presumptive evidence that the trustee has applied . . . trust funds . . . for purposes other than a purpose of the trust.” Like all statutory presumptions in New York, the presumption in Lien Law § 79-a(3) is permissive … . The trial court’s failure to instruct the jury that the presumption “was permissive, or to emphasize that, despite the presumption, the same burden of proof remained with the People, was bound to result in misleading the . . . jurors into believing that the presumption is conclusive and binding upon them'” …. Such a mandatory presumption is unconstitutional, as it relieves the People of their burden of proving every element of the crime and undermines the jury’s ” responsibility at trial, based on evidence adduced by the [People], to find the ultimate facts beyond a reasonable doubt'” .. . People v Cioffi, 2013 NY Slip Op 02588, 2012-00966, 2013-03689, Ind No 11-00174, 2nd Dept, 4-17-13

 

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Insufficient Proof of Value in Grand Larceny Case.

In a Grand Larceny 3rd case, based on the theft of cell phones, the value of the stolen phones was proved by the testimony of the store manager who did not provide “a basis of knowledge” for her statement of value.  The Second Department noted that “ ‘[c]onclusory statements and rough estimates of value’ that are unsupported by a basis of knowledge are insufficient…”. The conviction was reduced to petit larceny, which requires no proof of value.  People v Sutherland, 2011-06497, Ind. No. 12436/08 Second Dept. 1-23-13

 

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