Articles Posted in Grand Larceny

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A Queens Robbery Lawyer said that this in an appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 12, 1981, convicting him of robbery in the third degree, unauthorized use of a motor vehicle, unlawful imprisonment in the second degree, and escape in the second degree, upon a jury verdict, and imposing sentence.

A Queens Grand Larceny Lawyer said that, the evidence reveals that at about 6:30 P.M. on May 27, 1980, the Police Officer and his partner, Sergeant were driving through a parking lot located at 79-00 Queens Boulevard when the Police Officer observed the defendant with a screwdriver in his hand, standing at the rear of a vehicle opening its trunk. As the Sergeant approached defendant in order to question him, defendant ran. Defendant, however, was eventually caught and placed under arrest for attempted grand larceny in the second degree, a felony, and possession of burglar’s tools. Following his arrest, defendant complained of a stomachache and was taken to Elmhurst General Hospital.

A Queens Criminal Lawyer said that, when the Police Officer returned to duty the following afternoon of May 28, he was sent to Elmhurst General Hospital to guard defendant. He observed that the defendant was not handcuffed and was lying on an “operating table” in the corridor. Sometime later, while the Police Officer was trying to expedite defendant’s medical treatment, defendant managed to get off the table without him noticing him. The next thing he observed was defendant running down the corridor; defendant made a left turn into the X-ray room. He followed him into the X-ray room, and through an open window, observed him running down Broadway. He went out the front door of the hospital, and observed defendant at that time opening the door of a car which had been stopped for a red light, and dragging the woman driver and her son out of the car. Defendant then drove away, with the woman’s daughter still in the front seat of the car. After driving about 8 to 10 blocks, defendant let the girl out of the car. Defendant was subsequently placed under arrest on or about October 9, 1980 and was indicted for robbery in the second degree, unauthorized use of a motor vehicle, reckless endangerment, unlawful imprisonment in the second degree, and escape in the second degree, all stemming from the events of May 28.

The issue in this case is whether court erred in convicting the criminal defendant of robbery in the third degree, unauthorized use of a motor vehicle, unlawful imprisonment in the second degree, and escape in the second degree.

Subdivision 2 of section 205.10 of the Penal Law provides that “person is guilty of escape in the second degree when: been arrested for, charged with or convicted of a felony, he escapes from custody”. The Police Officer testified that the defendant was arrested for attempted grand larceny in the second degree, which is a felony. While his testimony is sufficient to establish that he had probable cause to believe defendant attempted to steal property, the People did not present any evidence whatsoever as to the value of the property. Thus, there apparently was no basis to arrest defendant for the felony of attempted grand larceny in the second degree instead of the misdemeanor of attempted petit larceny.

To Be Cont…
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The gravamen of the offense of conspiracy is the unlawful combination and not the successful execution of the plan. The offense is complete upon proof of the unlawful agreement and of an over act done to affect the object thereof by either of the parties to the agreement. The conspiracy is an independent crime wholly separate and distinct from the grand larceny which may have been the purpose of the conspiracy and which may or may not have come to a successful conclusion as a result of the conspiracy.

If the defendant and his co-defendant entered into an agreement pursuant to which this defendant exaggerated his bill and his medical report with the intent to deprive and defraud the insurance company of its money in an amount that would constitute a felony, and to appropriate the same to the use of either of the defendants or to aid and abet the co-defendant or others to do so, and the defendant wrote and issued such bill and statement, the conspiracy had been committed and was complete.

There is no legal requirement that the conspiracy result in a completed crime based upon the terms of the conspiracy. Even if it could be successfully established that the conspiracy failed of consummation because the substantive crime could not be or was not completed, the crime of conspiracy could still be complete andthe defendant and his co-defendant could still be guilty of a violation of Section 580 of the Penal Law.

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A Queens Grand Larceny Lawyer said that, this is a motion by the defendant for an inspection of the Grand Jury minutes, or in the alternative for an order dismissing the indictment. He contends that the testimony adduced before the Grand Jury did not spell out the crime charged against him and that illegal and improper evidence was produced before the Grand Jury. The indictment contains three counts; however, the defendant is charged only with the third count which alleges that he and his co-defendant conspired to commit the crime of grand larceny.

A Queens Criminal Lawyer said that, the defendant contends that the testimony heard by the Grand Jury caused that body to be ‘left to speculate the value of his’ report and medical bill in the amount of $95.00 and the effect thereof, if any, upon the award of $850.00 for the personal injury aspect of the claim’; that ‘there is no evidence from which the Grand Jury could conclude that the purportedly exaggerated medical bill and report had the effect of increasing the award to the extent that a felony would be accomplished’ and that ‘this was sheer speculation on its part.’

The issue in this case is whether defendant’s motion for an inspection of the Grand Jury minutes, or in the alternative for an order dismissing the indictment should be granted.

The minutes of the hearing before the Grand Jury have been carefully read and digested by the Court. In returning the third count of the indictment against the moving defendant the Grand Jury was not required, as defendant contends, to ‘conclude that the purportedly exaggerated medical bill and report had the effect of increasing the award to the extent that a felony would be accomplished.’ All that the Grand Jury was required to conclude was that this defendant and his co-defendant aided and abetted each other and that they conspired, combined,
confederated and agreed by and with each other to commit the crime of petite larceny in the first degree in accordance with at least one of the overt acts set out in the indictment.

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This is an appeal from a judgment of conviction after trial rendered by the County Court, Bronx County, sentencing defendant-appellant to 3 1/2 to 7 years in State Prison after he had been found guilty of criminally receiving and criminally concealing stolen property, as felonies. A Bronx Criminal Lawyer said that, this defendants, not apprehended, were indicted, charged with the crimes of grand larceny in the first degree; criminally receiving stolen goods as a felony; criminally withholding stolen goods as a felony, and conspiracy.

A Bronx Grand Larceny Lawyer said that defendant was found guilty of the crime of grand larceny in the first degree, defendant-appellant was convicted of the crimes of criminally receiving and criminally withholding stolen goods as felonies, with the disposition heretofore indicated. The conspiracy count was withdrawn after summation by defense counsel and before the case was submitted to the jury.

On June 3, 1958, at premises 1345 Seneca Avenue, The Bronx, there was a fake or sham robbery of the cash payroll of a certain company, in which the defendant, an employee and bookkeeper of the company, participated. It was charged that these defendants and one other, not apprehended, conceived the scheme, executed it and made off with a sum in excess of $9,000. Defendant was to receive a cut of $1,500 and it was while defendant-appellant was allegedly delivering this money for defendant to a prearranged place or person, that defendant-appellant was apprehended.

A Bronx Robbery Lawyer said that, defendant had been taken into custody previously and, after questioning, revealed the entire plot, and implicated defendant-appellant Schwarz and the other defendant. After the openings, but before the presentation of evidence, counsel for defendant-appellant moved for a severance and pointed out that counsel for defendant had not inquired of the jury, had waived his opening and that there was some indication that there was to be no trial so far as defendant was concerned. His motion was denied with an exception.

The issue in this case is whether the conviction of the court is proper.

The court said that, in the early stages of the trial, defendant’s counsel took no part and there was but limited participation by him thereafter. In summation, he endorsed the testimony produced, stating ‘The testimony produced by the District Attorney was a hundred per cent correct.’ defendant did not take the stand. Included in the testimony produced was the confession of defendant made in the absence of defendant-appellant, which the court charged was binding only on defendant, and other statements allegedly made by defendant to an officer that defendant-appellant ‘told me once before that he was a heist man’, that defendant-appellant opened up a glove compartment in a car in which they were then riding, and showed defendant a gun. The officer testified that defendant told him that he was afraid they would harm his wife and children and that was why in the beginning he would not tell what had occurred. The reference to the gun and to the feeling of defendant was elicited on examination of a police officer by counsel for defendant in his somewhat brief participation in the trial. Motions for a mistrial by counsel for defendant-appellant were denied.

In summation, the prosecution did not deny that defendant wanted to plead guilty at the outset of the trial, as stated by counsel for defendant-appellant, but asserted that the only way he could have pleaded guilty ‘is by pleading guilty to all three counts of this indictment’ and defendant did not receive any money. Parenthetically, it should be noted that defendant was not convicted of criminally receiving or withholding stolen money. Although the conspiracy count was withdrawn after summation by defense counsel, maximum benefit had been and was obtained by the prosecution through its utilization and in the posture of this case it is a circumstance which lends substance to the defendant-appellant’s complaint.

The minutes of sentence of defendant indicate full cooperation by him and ‘the fact that he offered to plead guilty at the beginning of the trial and all through the trial.’ On this appeal, the defendant-appellant asserts, inter alia, that his guilt was not proved beyond a reasonable doubt. There would be no merit to that argument if it were the sole basis of the appeal and certain factors to which we will advert were not present. More serious is his contention that he was deprived of a fair trial by the court’s denial of his application for a severance under the circumstances and facts of this case, and because of the tactics of the prosecution.

A motion for a severance or a separate trial, is addressed principally to the discretion of the court and its determination will not lightly be overruled. Nor will an appellate court substitute its discretion for that of the trial judge unless it feels there has been abuse of that discretion. This was the rule at common law, and the Legislature has so provided by statute. Nor would the mere fact of the admission of a confession, standing alone, constitute such an abuse of discretion as to warrant reversal where the court under proper instructions, strove to limit its effect.

It may be that the trial court felt there was insufficient in the record to warrant granting a severance at the time the initial motion therefor was made. Counsel for defendant-appellant pointed out, however, and without contradiction, that the trial of defendant would be a sham and the effect of his admissions would necessarily fall over on defendant-appellant. A preliminary inquiry at that stage of the trial would not have been amiss. The appellate court may be in a more fortunate position in that it can view the record retrospectively to determine if substantial rights of a defendant have been prejudiced by a refusal to grant a severance, or if there is doubt that the conviction might have been effected without the confession and incriminatory statements of a codefendant.

While at common law persons tried upon the same charge were disqualified as witnesses, that disqualification has been removed by statute. A defendant may now be a witness for himself or for a co-defendant or, under certain conditions, he may be called and testify for the prosecution against a defendant jointly named in the indictment. In the ordinary case a ruling directing a joint trial will not be disturbed. But when it is apparent that the practical effect of a confession and additional statements made by a co-operative defendant which are received in evidence on the trial is to jeopardize the rights of a codefendant to a fair trial, or to accuse such codefendant of the commission of other or additional crimes for which he has not been indicted and for which he is not on trial, the conviction thereby obtained cannot stand, and the ruling which, wittingly or unwittingly, permitted the situation will not be sanctioned by affirmance.

The language of our sister Department seems singularly appropriate here: ‘On this record and these briefs the inferences are clear that there was an agreement between the District Attorney’s office and the codefendant and that the purpose in trying the appellant and his codefendant jointly was to prejudice the appellant by the admission of testimony by the detective as to conversations with the codefendant which would not have been admissible if appellant were the sole defendant on trial. In effect, the codefendant, although he did not testify, conceded to the jury that it could and should find him guilty.

In the case before us the same vice in summation is again apparent. We find here that a substantial right of the appellant has been affected and the power conferred by § 542 of the Code of Criminal Procedure is not to be exercised. The judgment appealed from should be reversed on the law and in the interests of justice, and a new trial ordered.

Accordingly, the court held that the judgment unanimously reversed upon the law and in the interests of justice, and a new trial ordered.
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In this criminal case, a Bronx Grand Larceny Lawyer said that defendants-appellants, members of the New York City Police Force, were indicted, together with another, for the crime of conspiracy in the second degree, (Penal Law 105.10) grand larceny in the first degree (extortion), bribe receiving, receiving reward for official misconduct and official misconduct. At the trial, the latter two counts on official misconduct were removed from jury consideration. The jury acquitted on the charges of grand larceny and bribe receiving, but convicted on the charge of conspiracy in the second degree.

The issue in this case is whether defendants are guilty of conspiracy.

The court in deciding the case cited the provisions of Penal Law 105.10Section 105.10 reads as follows: ‘A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class B or class C felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.’

While it is possible to have a conviction of criminal conspiracy even though the defendants are found not guilty of the substantive crimes contemplated, for this conviction to stand, it must be clear as to whether the predicate intended felony conforms to the statute. A conspiracy was charged here to commit both grand larceny in the first degree by extortion, a class C felony, which satisfies the requirement, and bribe receiving, a class D felony, which is surplusage that does not satisfy the requirement, all in one count. As the Trial Judge indicated, there could not be a conviction of conspiracy in the second degree based on the allegation with respect to the bribe receiving.

While the Trial Judge endeavored in his charge to limit the situation to the predicate class C felony of grand larceny by extortion, the situation was confusing. Under the circumstances, it is preferable pursuant to CPL 470.15(2) (a), 470.20(4) to apply the provisions of Penal Law § 105.05 as the evidence was legally sufficient to establish the guilt of the defendants of conspiracy in the third degree. This Court has the authority, which is hereby exercised, to so modify the judgment by reducing the crime of which defendants are convicted, to conspiracy in the third degree, and accordingly to remit the matter for resentencing.

The District Attorney concedes that under the theory of the crime put forth, and the facts proved, in this case, the counts of grand larceny in the third degree and possession of a weapon as a misdemeanor were lesser included concurrent counts to robbery in the first degree. The verdict of guilty on the robbery count entitled the defendant to a dismissal of the lesser counts submitted as inclusory concurrent counts. The reversal and dismissal of the grand larceny and weapon counts do not affect the validity of the robbery conviction. The remaining contentions advanced by defendant have been examined and found to be without merit.

Accordingly, the court held in the first case that the judgment of the Supreme Court, Bronx County, rendered October 11, 1973, convicting defendant, upon a jury verdict, of robbery, first degree, grand larceny, third degree and possession of a weapon as a misdemeanor, unanimously modified, on the law, to the extent of reversing the convictions on the grand larceny and the weapon counts and dismissing those counts of the indictment and, as so modified, the judgment is affirmed; further, the court held that the judgments, Supreme Court, Bronx County, each rendered June 27, 1972, convicting the defendants, after a jury trial, of conspiracy in the second degree, are unanimously modified, on the law, by reducing the degree of crime, conspiracy in the second degree, to conspiracy in the third degree, and by remitting the matter for resentencing, and, as thus modified, judgments are affirmed.
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In criminal case, the defendant appealed from a judgment of the Supreme Court, Queens County, convicting him of grand larceny in the third degree, criminal possession of stolen property in the third degree, criminal mischief in the third degree, and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.

The court ordered that the judgment is modified, on the law, by (1) reversing the convictions of grand larceny in the third degree, criminal possession of stolen property in the third degree, and criminal mischief in the third degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment, and (2) vacating the sentence imposed on the conviction of unauthorized use of a vehicle in the third degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing on the conviction of unauthorized use of a vehicle in the third degree.

A Queens County Grand larceny lawyer said that Police Officers were parked on a Queens street on plainclothes patrol. At approximately 5:15 A.M. they observed the driver of a stolen Honda automobile pull the automobile alongside a Datsun automobile which was parked three car lengths in front of the officers’ car. The defendant, who had been seated in the Honda’s front passenger seat, exited the passenger door of the Honda and entered the Datsun. The officers pulled up behind the Honda, exited their car, and approached the Honda from either side with their shields displayed. After Officer the officer said “Don’t move”, the driver of the Honda began to slowly drive away. The defendant then exited the Datsun and jumped head first into the Honda through the passenger window, whereupon the driver accelerated in an attempt to flee the police. The officers reentered their vehicle and pursued the Honda. A short while later, the Honda struck a curb and crashed into a sanitation truck, that had been stopped for a traffic light. At that point both the driver and the defendant exited the vehicle and fled on foot. The police officers gave chase and later apprehended the defendant as he walked down a nearby street. The driver, however, successfully eluded arrest. Upon their return to the Honda, the officers found that the windshield was smashed, the rear bumper was hanging off, and the ignition cylinder was missing from the car.

The issue to be resolved in this case is whether or not the defendant should be convicted.

The Court held that in order to sustain a conviction for criminal possession of stolen property, the evidence must establish that the defendant knowingly exercised such “dominion and control” over the property so as to conclude that he “possessed” the property. With respect to a passenger in a stolen vehicle, dominion or control may be shown by evidence which establishes when the passenger entered the vehicle and/or what part, if any, he played in its taking. In the case at bar, there was neither a showing that the defendant participated in the taking of the Honda, nor proof as to when the defendant originally entered the vehicle. Although it may be fairly concluded that the defendant’s act of jumping into the Honda and his subsequent flight from the police evidenced his awareness that the car was stolen, these facts alone do not show that the defendant exercised dominion and control over the vehicle. Without such a showing, the “defendant’s presence in the car cannot be equated with possession”.

Accordingly, the judgment must be modified, by reversing the defendant’s conviction for criminal possession of stolen property in the third degree. Moreover, for the same reasons, we must necessarily conclude that the evidence was also legally insufficient to warrant the convictions for grand larceny in the third degree and criminal mischief in the third degree.

The court noted, however, that the defendant raises no issue as to his conviction for unauthorized use of a vehicle in the third degree, a crime for which one can be found guilty by merely riding in a vehicle knowing he does not have the consent of the owner”

The matter is remitted to the trial court for resentencing with respect to the conviction of unauthorized use of a vehicle in the third degree.
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In the first grand larceny case, Defendant was indicted for burglary in the third degree, attempted grand larceny in the first degree, and possession of burglar’s instruments, as a misdemeanor. The defendant desired to plead guilty to attempted grand larceny in the second degree to cover the entire indictment. Prior to accepting the guilty plea, the court asked defendant if he had entered the premises which he was charged with burglarizing with intent to steal money, and defendant responded that he had such intent but that there was no money on the premises. The criminal defendant was permitted to withdraw his plea of not guilty and to plead guilty to attempted grand larceny in the second degree to cover the entire indictment.

The Supreme Court, Queens County convicted the defendant, on his plea of guilty, of attempted grand larceny in the second degree. The Appellate Division affirmed the judgment of the Supreme Court. The defendant appealed to the Court of Appeals by permission of a Justice of the Appellate Division. The defendant contended in the Court of Appeals that the trial court erred in accepting his plea of guilty since the facts elicited from him by the Supreme Court did not establish the commission of attempted grand larceny, which required an attempt to take property of any value from any person or to take property in excess of a specified value in any manner. The People contended in the Court of Appeals that the fact that the defendant did not find any money on the premises did not make acceptance of his plea of guilty to the reduced charge improper.

In another grand larceny case, defendant appealed a judgment of the Supreme Court, Queens County convicting him of grand larceny in the fourth degree, criminal possession of stolen property in the fifth degree, possession of burglar’s tools, and jostling (three counts), upon a jury verdict, and sentencing him as a persistent felony offender to an indeterminate term of incarceration of 15 years to life on the count of grand larceny in the fourth degree, a determinate term of incarceration of one year on the count of criminal possession of stolen property in the fifth degree, a determinate term of incarceration of one year on the count of possession of burglar’s tools, and determinate terms of incarceration of one year on each of the three counts of jostling, all to run concurrently. The court ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant’s adjudication as a persistent felony offender, and reducing the defendant’s term of imprisonment for grand larceny in the fourth degree from an indeterminate term of imprisonment of 15 years to life to an indeterminate term of imprisonment of 2 to 4 years as a second felony offender; as so modified, the judgment is affirmed.

The defendant was convicted of grand larceny in the fourth degree based on evidence that he took the sum of $22 out of the pocket of an elderly man. He was also convicted of possession of stolen property in the fifth degree, jostling (three counts), and of possession of burglar’s tools, to wit, the sweatshirt which he used to cover his hand while pickpocketing.
Prior to trial, the trial court ruled, after a hearing, that to demonstrate the defendant’s intent and the absence of mistake or accident, the People could introduce evidence that the defendant previously had been arrested by the same officers who arrested him for the instant crimes, on another occasion when he used a sweatshirt to cover his hand while pickpocketing. Under the circumstances of this case, the evidence of the defendant’s prior crime and his modus operandi on the prior occasion was properly admitted, with limiting instructions, to show intent.

With respect to the adjudication of the defendant as a persistent felony offender, the court based that adjudication solely upon the defendant’s criminal record of misdemeanors and low-level felonies involving primarily pickpocketing offenses. In response, the defendant presented evidence of his good character. In light of the specific nature of the defendant’s criminal history and the totality of the evidence adduced at the hearing, the persistent felony offender adjudication should be vacated. Accordingly, the defendant should be sentenced for grand larceny in the fourth degree-a class E felony-to an indeterminate term of imprisonment of two to four years, which is the maximum permissible sentence for a second felony offender convicted of that crime.

In light of the court’s determination, the defendant’s challenge to the constitutionality of the persistent felony offender statute has been rendered academic. The defendant’s remaining contention is without merit.
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This is an appeal by the defendant from three judgments of the Supreme Court, Queens County all rendered September 21, 2007, convicting him of (1) grand larceny in the first degree, grand larceny in the second degree (three counts), criminal impersonation in the second degree (four counts), and scheme to defraud in the first degree, under Indictment No. 2096/04, (2) grand larceny in the second degree (two counts), criminal impersonation in the second degree (two counts), scheme to defraud in the first degree, and practicing or appearing as an attorney without being admitted and registered (two counts), under Indictment No. 439/05, and (3) grand larceny in the second degree (two counts), scheme to defraud in the first degree, criminal impersonation in the second degree (two counts), and practicing or appearing as an attorney without being admitted and registered, under Indictment No. 2434/05, upon a jury verdict, and imposing sentence.

A Bronx Grand Larceny Lawyer said that, the attempted grand larceny of a motor vehicle, took place, several days before the effective date of the 1986 amendment to the Penal Law. The sentence was imposed after the effective date of the statute, however, and defendant is entitled to retroactive application of the ameliorative amendment to the Penal Law, which reduces the punishment for the white collar crime charged. Mail fraud was suspected also.

The issue in this case is whether the court erred in convicting the defendant.

The court said that, before allowing a defendant to proceed pro se, the court must determine that the defendant’s waiver of the right to counsel is made knowingly, voluntarily, and intelligently. In order to make that evaluation, the court must conduct a “searching inquiry” of the defendant. While there is no “rigid formula” to be followed in such an inquiry, and the approach is a flexible one, the record must demonstrate that the defendant was made “aware of the dangers and disadvantages of proceeding without counsel”. In particular, the record should show that the trial court ” adequately warned the defendant of the risks inherent in proceeding pro se, and apprised the defendant of the singular importance of the lawyer in the adversarial system of adjudication'”. The record should also disclose “that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” of the right to counsel.

Here, before permitting the defendant to proceed pro se prior to a suppression hearing, the suppression court advised the defendant that it would be an “extraordinary” decision to proceed without counsel, that to do so would be “extraordinarily dangerous,” and that most defendants who represent themselves are not successful. The court also discussed the potential sentences that could be imposed.

However, the suppression court did not advise the defendant of the importance of the role of the attorney in the adversarial system, nor as to the “dangers and disadvantages” of self-representation. Further, prior to the trial itself, the trial court made no inquiry as to the defendant’s decision to represent himself at trial. Under these circumstances, the defendant’s waiver of counsel cannot be deemed knowing and voluntary.

Accordingly, the court held that they have considered the remaining arguments of the parties and find them to be with merit. Viewing the evidence in a light most favorable to the People where entry to the vehicle was accomplished by breaking a window, and where the defendant and co-defendant were seen under the hood and steering column of the vehicle and were in possession of a screw driver, the record supports the conclusion that a rational trier of fact could find, beyond a reasonable doubt, that the co-defendants in this case intended to steal the vehicle, thus engaging in conduct which tended to effect the commission of such crime. Any competing inferences were within the domain of the jury.

Accordingly, the court held that the judgments are reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
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On May 29, 1953, the accused man was indicted, by long form indictment, on four counts of common-law larceny–one count of grand larceny and three counts of petit larceny. None of the counts alleged that he made use of false or fraudulent representations in the course of accomplishing the various thefts. Under the circumstances, criminal evidence of such representations could not be received over his objection. When the complainant sought to introduce such evidence during the course of the trial, the accused man objected. Thereupon, acting pursuant to Code of Criminal Procedure, the trial court permitted the complainant, over the accused man’s objection, to amend the indictment by adding four new counts, each the same as the four original counts, except that allegations of false pretense and fraudulent representation were included in the new counts. The accused was thereafter found guilty only of count 5 (grand larceny in the first degree by false pretenses), the other 7 counts having been dismissed. The judgment of conviction was reversed by the court and the indictment was dismissed. The dismissal of the indictment was affirmed by the Court of Appeals on the ground that the trial court was without statutory authority to grant the amendment of the indictment.

On November 9, 1955, the accused man was indicted for grand larceny in the first degree committed as a result of false pretenses and fraudulent representations, the indictment being for the same crime charged in count 5 of the prior indictment, as amended at the trial.

In March, 1956 he moved to dismiss the new indictment on the ground of double jeopardy. The motion was granted by the order from which the appeal is taken. These are white collar crimes. Bank fraud was not charged.

The order should be reversed and the motion to dismiss the indictment was denied because the original indictment that may have been valid is found to be immaterial. When the original indictment was amended during the course of the trial to include count 5 (among others) charging grand larceny by false pretense and fraudulent representation, the indictment, insofar as it included count 5, was invalid because the court was without statutory authority to grant the amendment. Count 5 was the only one on which the man was convicted. He was never placed in jeopardy on that count because the charge therein contained was not validly included in the indictment. No valid judgment could have been pronounced thereon, even though the facts adduced at the trial may have warranted it.

The order must also be reversed since the accused man was not acquitted on the merits. Count 5 of the amended indictment was dismissed upon an objection to its form or substance and, therefore, the dismissal may not be deemed an acquittal for purposes of double jeopardy. The objection to the conviction with respect to count 5 of the amended indictment was that it was not found by a grand jury, and that the court was without authority to grant the amendment, which are defects in substance. The dismissal with respect to count 5 of the amended indictment was only because it was defective and not because there was an acquittal on the merits that the Court of Appeals in effect held that, insofar as count 5 was concerned, the indictment was not duly found, the court was without jurisdiction to have rendered any valid judgment with respect to count 5, and all prior proceedings with respect to count 5 were invalid. Under such circumstances, there can be no jeopardy and since the man procured count 5 of the amended indictment to be quashed, he cannot assert that he was in jeopardy under it.
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The criminal defendant and two co-defendants were indicted for multiple counts of forgery and grand larceny for having endorsed and cashed New York State employment checks over a three year period. The defendant was allowed to plead guilty to one count of Grand Larceny in the Second Degree and was to receive a sentence of 1-1/2 to 3 years. The plea was vacated because the minimum sentence for Grand Larceny in the Second Degree was 2 to 4 years. However, the parties agreed to allow the defendant to plead guilty to the reduced, lesser included, crime of Attempted Grand Larceny in the Second Degree and receive the previously agreed upon sentence of 1-1/2 to 3 years. In his allocution the defendant stated that the value of the stolen property, which he received, was less than $1500.00 while the elements of the crime of Grand Larceny in the Second Degree required that the value of the property exceed that amount. In the minutes of the plea proceeding supplied by the defendant, he is not advised of his right to appeal.

The defendant’s motion sought to have his sentence set aside twenty-six years after it was imposed. The grounds for such relief are statutory and require a showing that the sentence was unauthorized, illegally imposed or otherwise invalid as a matter of law. Bail reduction was not sought.

The gravamen of the defendant’s motion is that he was not advised of his right to appeal at sentencing, which is not a ground for Criminal Procedure Law (CPL) relief. The motion however, mentioned that his appealable issue would be that his plea allocution was defective and his counsel was ineffective for not advising him of his right to appeal making his sentence unauthorized. These were viable grounds and the court therefore considered his CPL motion. The defendant’s reply added no legal arguments to his original motion. It refuted the complainant’s Answer and reiterated that which was already before the court.

The defendant’s plea of guilty to one count of Grand Larceny in the Second Degree was based on the understanding that he would receive a reduced sentence for his plea, to cover all of the crimes charged in the indictment. Realizing that the sentence was not authorized for that charge, the defense counsel, the prosecutor and the court allowed the defendant to plead guilty to a lesser included charge of Attempted Grand Larceny in the Second Degree which permitted the lesser sentence.

The Grand Jury found sufficient evidence to indict the defendant and two co-defendants for multiple counts of forgery and grand larceny for having endorsed and cashed New York State employment checks over a three year period. The defendant’s self-serving statement at his allocution, that his share of the proceeds was less than $1500.00, did not mean that the complainant could not prove otherwise at trial.

The defendant’s allegation of ineffective assistance of counsel is belied by the totality of the facts and circumstances surrounding defendant’s plea and sentencing. The defendant’s attorney was sufficiently effective to convince the prosecutor and the court to permit the defendant to plead to one reduced count of a multiple count felony indictment wherein he was sentenced to the minimum amount of permissible time in prison to be served concurrently with a previously imposed sentence. There is nothing before the court to suggest that the defendant’s counsel was ineffective during the pretrial stages of the case or during his plea and sentencing.

The court thus found that the defendant’s sentence was not unauthorized, illegally imposed or otherwise invalid as a matter of law. Accordingly, the defendant’s motion to reargue and his application for a Writ of Error Coram Nobis (an order by an appeals court to a lower court to consider facts not on the trial record which might have changed the outcome of the lower court case if known at the time of trial. Coram nobis is a Latin term meaning the error before us) are denied.
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