Articles Posted in Petit Larceny

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This is a written version of a decision that was delivered orally on a motion to dismiss an indictment.

This case is one of a dozen separate cases resulting from an investigation by the District Attorney and a Grand Jury of alleged insurance fraud by a number of lawyers and doctors in the New York City metropolitan area involving false claims for injuries in accidents.

The decisive issue in this case is whether geographical jurisdiction–also called venue lies in the County because an undercover agent placed a telephone call from the County to the defendant in New York County, whereupon the criminal defendant solicited him on the telephone to commit the crimes.

An important witness in the investigation of many of the lawyers was an accomplice chiropractor, whose offices are in New Hyde Park and Brooklyn. Cooperating with the District Attorney, he secretly recorded conversations with targeted lawyers, and he testified before the Grand Jury. Tape recordings of conversations between the chiropractor and the lawyers were introduced in evidence before the Grand Jury.

The present indictment charges the defendant, a lawyer whose office is in Manhattan, with insurance fraud and falsifying business records of the chiropractor and the insurer. The charges, clarified by a bill of particulars, allege that the defendant solicited the chiropractor on the telephone to make up and submit back-dated bills for fictitious visits by two clients, to beef up claims on insurance policies for injuries from automobile accidents. During the conversation, the chiropractor was in the County, having telephoned the defendant’s office in Manhattan from the District Attorney’s Office in Brooklyn.

Although venue is not an element of the crime, it must be established before a grand jury. The standard of proof on review of the sufficiency of evidence of venue before a grand jury is low: whether jurisdiction fairly and reasonably can be inferred from all the facts and circumstances introduced into evidence.

The evidence before the Grand Jury, taken in the light most favorable to the complainant as it must, showed that the chiropractor created the phony bills in his office in New Hyde Park and filed them there. The defendant or the chiropractor submitted the bills from New Hyde Park or Manhattan to the insurer’s offices in Nassau County. The falsified records of the insurer were in Nassau County. All correspondence from the defendant in the alleged schemes was sent from Manhattan to places in Nassau County. Although in the crucial telephone conversation, the chiropractor was returning the defendant’s telephone call, the evidence did not show where the defendant had called to, and there was no evidence that the defendant knew that the chiropractor was in Kings County when the defendant solicited him on the telephone to commit fraud; in all other communications between them by mail or telephone the defendant was in Manhattan and the chiropractor was in his Nassau County office.

The evidence before the Grand Jury showed, and the complainant commendably conceded on oral argument, that the only contact with Kings County was that telephone conversation between the chiropractor in the District Attorney’s Office in Kings County and the defendant in his office in New York County.

The complainant rely entirely on Criminal Procedure Law which provides that in determining the proper county of venue–a statement made on the telephone or by mail by a defendant in one county to a person in another county is deemed to have been made in both counties.

If the defendant’s solicitation to defraud, although occurring in New York County, is deemed to have been committed in Kings County, then the Kings County Grand Jury and the Court have jurisdiction pursuant to Criminal Procedure Law. If the defendant is deemed to have been in Kings County, then his conspiracy with the chiropractor would be deemed to have occurred here. There would also be venue in Kings County pursuant to Criminal Procedure Law which places venue in a county if conduct in that county is sufficient to establish an element of the crime; that element would be the defendant’s intent to defraud.

The flaw in the complainant’s mechanical application of Criminal Procedure Law is that it ignores the constitutional background of Criminal Procedure Law. Viewed in such contexts, the law does not apply to the telephone conversation. The reason is that there was no actual criminal conduct or intent in Kings County, no effect in Kings County of the defendant’s conduct in Manhattan, no intent to have an effect in Kings County, not even evidence of knowledge by the defendant that the chiropractor was in Kings County when the defendant solicited the chiropractor. All acts by the defendant were performed in counties other than Kings, and every result of his conduct was outside Kings County.
A defendant has the right under Article I, Section 2, of the Constitution of New York to be prosecuted in the county where the alleged criminal conduct was committed, unless the Legislature vests jurisdiction in some other county. The right to trial by jury incorporates the common law as it stood at the time of independence. That includes the right to be tried by a jury of the vicinage, the county where the alleged criminal conduct was committed.

The guarantee to a defendant of the right to trial by a jury of the vicinage is a right historically regarded as vital. Indeed, limitation of that right was one of the grievances that led to the American Revolution. The courts of New York have long recognized that this right is not to be lightly disregarded and that only the most compelling reason could justify trial by a jury not drawn from the vicinage.

Thus, if a defendant is convicted by a jury that includes, over timely objection and after exhaustion of the defendant’s peremptory challenges, a juror who is not a resident of the county, the conviction may be void. The Court of Appeals has included a juror’s residence among the qualifications that go to the substance of a juror’s function.

The Court gave a restrictive interpretation to two other venue statutes. Criminal Procedure Law provides that an offense committed in a private vehicle during a trip through more than one county may be prosecuted in any county through which the vehicle passed. It also provides that an offense committed within 500 yards of a boundary between two counties may be prosecuted in either county. The plain language of these statutes would have placed venue in Kings County for prosecution of a rape committed in a car in Queens County within 500 yards of the border of Kings County during a trip from Brooklyn to Queens. Nevertheless, the Court held that these statutes are not applicable when the site of the crime is ascertainable.

The Court stated that statutory exceptions to the rule that the prosecution should be held at the place where the crime was committed were created out of necessity. Strict adherence to the common-law rule often created insurmountable obstacles to prosecution. For instance, if part of the crime had been committed in one county and part in another, the defendant could not be tried in either. In this and similar cases where the law would otherwise be frustrated, the general rule was altered by statute to insure that there would always be some forum where the crime could be prosecuted.

To avoid the risk of abuse, and to preserve the defendant’s right to a trial by a jury of the county where the alleged criminal conduct occurred, the courts of New York State must be hesitant, notwithstanding the literal language of Criminal Procedure Law, to base venue entirely on the location of an undercover informer’s communication.

The indictment is dismissed, without prejudice to presentation of appropriate charges to a grand jury of New York County.
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Respondent has been charged with Grand larceny; Criminal Possession of Stolen Property; and Unauthorized Use of a Vehicle. Petitioner moved to amend the petition to include three additional charges against respondent: Petit Larceny; Possession of Burglar’s Tools; Possession of Stolen Property in the Third Degree. Respondent submitted an Answering Affirmation and Cross Application for Dismissal, and petitioner submitted a Reply Affirmation which includes a further motion to amend. All of the pleadings and proceedings had herein have been considered in reaching the court’s decision.

The first issue to be addressed in deciding this motion to amend is whether C.P.L. § 100.45(3) is applicable as contended by petitioner, or whether C.P.L. § 100.45(2) is the appropriate subsection as posited by the respondent. The former criminal subsection applies to amendment of an Information, while the latter subsection applies to amendment of a Prosecutor’s Information. Therefore, application of the appropriate subsection depends on the classification of a juvenile delinquency petition as analogous to an Information or Prosecutor’s Information, which appears to be an issue of first impression.

These terms are defined in C.P.L. § 1.20. An Information is a verified accusation by a person, while a Prosecutor’s Information is such an accusation by a district attorney. The Information initiates a criminal action and is the basis for prosecution, while a Prosecutor’s Information serves as a basis for prosecution. Amendment of a Prosecutor’s Information invokes the section for amendment of an Indictment by a Grand Jury, C.P.L. § 200.70. A Prosecutor’s Information is further defined in C.P.L. § 100.35 as being in the form of an Indictment. This court holds that a juvenile delinquency petition is not akin to a Prosecutor’s Information (or Indictment) but is tantamount to an Information. Therefore, C.P.L. § 100.45(3) is the relevant section for amendment of a juvenile delinquency petition.

C.P.L. § 100.45(3) allows amendment of the instrument before trial to include additional charges if the new charges are supported by the factual allegations already contained in the instrument. In the case at bar, two of the additional charges are supported by the facts alleged in the petition, Petit Larceny and Possession of Stolen Property in the Third Degree.

The third additional charge, Possession of Burglar’s Tools, is not supported by the facts alleged. The petition alleges that respondent removed complainant’s car keys and took his car. Petitioner contends that complainant’s car keys are a burglar’s tool.

The Court finds that the keys do not fall within the language or intent of C.P.L. § 140.35, which defines a burglar’s tool as: “any tool, instrument, or other article adapted, designed or commonly used for committing or facilitating offenses” In a case, the court held that the key to a specific apartment, though not allegedly stolen as here, was used to burglarize that apartment. The Court held the key was not a burglar’s tool, because it was not adapted to commit an offense; it was used in the normal manner and was not a burglar’s tool. The car keys in this case were allegedly stolen and are therefore the subject of the charges of Petit Larceny and Possession of Stolen Property in the Third Degree, but they are not a burglar’s tool under C.P.L. § 140.35. Therefore, that charge may not be added to the petition.

As regards respondent’s Cross Application for Dismissal, respondent insists that the petition must be dismissed, because of alleged noncompliance with C.P.L. § 100.40(1)(b). The section respondent must have intended to cite is C.P.L. § 100.40(1)(c), because that is the section from which he derives the requirement for non-hearsay statements in support of the allegations. That section does require non-hearsay support for “every element of the offense charged and the defendant’s commission thereof.”

In this case, the petition is supported by the sworn deposition of the arresting officer whose statement says that he observed respondent in possession of a car reported stolen. Respondent is correct in stating that this deposition does not mention the car keys, though the petition does. We need not reach a decision as to whether the arresting officer’s sworn deposition is sufficient support of the petition to satisfy C.P.L. 100.40(1)(c) for the following reason.

Petitioner’s Reply Affirmation includes a motion to amend by adding to the petition a sworn deposition of the complainant, owner of the allegedly stolen car and keys. This motion cites C.P.L. § 170.35(1)(a), which says a criminal instrument is defective when It is not sufficient on its face pursuant to the requirements of section 100.40; provided that such an instrument or count may not be dismissed as defective, but must instead be amended, where the defect or irregularity is of a kind that may be cured by amendment and where the people move to so amend.

This section leaves no discretion in the court: amendment must be allowed where such amendment is requested by the people and will cure the defect. The people have so moved in this case, and the defect alleged by respondent under C.P.L. § 100.40 will be cured by the addition of the complainant’s sworn statement that he did not give, or authorize another to give, permission for respondent to take, possess, use, or damage his car or the keys thereto. These non-hearsay allegations in conjunction with the sworn deposition of the arresting officer satisfy C.P.L. § 100.40(1)(c). Therefore, petitioner will be allowed to annex the complainant’s sworn statement to the petition, pursuant to C.P.L. § 170.35(1)(a).

Accordingly, Petitioner’s motions to amend are granted to the extent that it is hereby ordered that the petition be amended to add the charges of Petit Larceny, P.L. § 155.25, and Possession of Stolen Property in the Third Degree, P.L. § 165.40, and to annex thereto the sworn deposition of the complainant. Respondent’s Cross Application to dismiss is denied.

During the pendency of this motion, the trial date was adjourned. If a further adjournment is deemed necessary by respondent such motion should be made before the trial judge.
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Defendant was charged of four counts of common law larceny, one count alleging grand larceny, first degree, and three counts of petit larceny. This indictment was prepared in accordance with Section 276 of the Code of Criminal Procedure and is commonly known as a ‘long form indictment.’

A Grand larceny case said that when the People sought to introduce criminal evidence at the trial that the defendant made use of a false or fraudulent representation or pretense in the commission of the larceny, it was met with an objection by the defendant that such testimony was inadmissible since the indictment failed to meet the requirements of Subdivision 1 of Section 1290-a of the Penal Law which provides as follows: ‘if the defendant made use of any false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, evidence thereof may not be received at the trial unless the indictment or information alleges such representation or pretence.’

Since the indictment aforementioned failed to allege a false or fraudulent representation or pretense in connection with the larceny, the trial court properly sustained the objection. To meet the situation the People moved the Court, to amend the indictment by adding four more counts, each new count corresponding to one of the original ones, except that each new count contained an added allegation not found in any of the first four that the larceny was effected by defendant’s false pretense and representation. This amendment was granted over the defendant’s objection.

Fortified with the amendment the People then offered proof of the defendant’s false and fraudulent representations, which proof was inadmissible under the original indictment. The case was ultimately submitted to the jury only on the amended ‘fifth count,’ which charged the defendant with grand larceny in the first degree by false pretenses. All other counts were dismissed. The defendant was found guilty, and simultaneously with the imposition of sentence, the trial court granted a certificate of reasonable doubt. This is a white collar crime.

On appeal the Appellate Division, while affirming the facts, reversed the conviction on the law alone and dismissed the indictment. The reversal was on a ground other than that stated by the Court of Appeals in affirming the said lower court. The effect of the Court of Appeal’s decision is that Section 295-j of the Code of Criminal Procedure may only be invoked to amend a ‘simplified indictment’.

Thereafter, the Grand Jury found the instant indictment which, it is conceded, substantially covers the identical subject matter, parties, dates and amounts alleged in the prior indictment (1022/53). Upon his arraignment on this indictment the defendant interposed a plea of ‘not guilty’ together with the aforementioned specification.

The District Attorney, in opposing the granting of this motion, takes the position that no double jeopardy is involved. His stand on this application is directly contrary to that taken by him in the Court of Appeals where, in seeking a reversal of the order made by the Appellate Division, he stated that should the decision of the Appellate Division be upheld by this Court, the court respectfully submit that the constitutional protection against double jeopardy will probably bar a second trial.

The cases cited above dictate the granting of this motion. In that case, the defendant was indicted for murder in the first degree. The trial consumed seven days. When the jury failed to arrive at verdict after five hours of deliberation the Court, without the consent of the defendant, discharged the jury, and remanded the defendant for further proceedings. An order sustaining a Writ of Habeas Corpus and discharging the defendant was affirmed by the Appellate Division. The Court of Appeals in affirming the Appellate Division, the following general rule with respect to double jeopardy which is the law of this State: ‘If a person accused of crime is placed upon trial therefor upon an indictment duly found and sufficiently informed, and he pleads thereto and proceeds with the trial before a jury duly sworn to try the issues so joined, he is placed in jeopardy within the constitutional provisions.’ No probation was offered.

‘The general rule in this state is that if the court has jurisdiction and all prior proceedings are valid, a prisoner is placed in jeopardy when he has been arraigned and pleaded to a valid charge, a jury has been examined and sworn, and evidence given.

In another case, the defendant was on trial for manslaughter in the first degree. At the end of the People’s case, the Court believing it was empowered by Sec. 400 of the Code of Criminal Procedure discharged the jury over the defendant’s objection and ordered a resubmission of the case to the Grand Jury. The defendant was thereafter indicted for murder in the first degree. Defendant sued out a Writ of Habeas Corpus and obtained his discharge on the ground that the action of the trial Court violated his constitutional guarantee against double jeopardy. The order sustaining the writ was affirmed.

The contention by the District Attorney that no double jeopardy is involved because the defendant could not have been convicted of larceny by false pretenses under the original indictment is without merit.

The fact remains that the prior indictment was a valid one in so far as it alleged a common law larceny. Being valid, it conferred jurisdiction upon the trial Court and in the absence of any objection by the defendant against the introduction of testimony concerning false pretenses, he could have been convicted under the said indictment. However, the fact that the defendant did not waive the objection and prevented such testimony from being introduced, does not detract from the validity of the indictment.

It is not necessary to constitute double jeopardy that the prior trial shall have resulted in a valid judgment of acquittal or conviction. It is sufficient if the defendant was actually placed in jeopardy in that he was in danger of having a valid judgment pronounced as a result of the trial.

The Court realized that in the light of the affirmance of the facts by the Appellate Division, this decision, if ultimately sustained, may result in the discharge of a guilty defendant, but as was said in a case, the principle involved ‘transcends the issue of guilt or the disposition of this particular case.’

Accordingly, the motion to dismiss the indictment is granted by the court.
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It is common to discover that many of our youths of today are the ones who fall into committing crimes of robbery that even start as simple as shoplifting according to a New York shoplifting lawyer. The case that can help you unravel it out all the more with the assistance of an expert would be that of Andre Garcia. The factors that were included in his crime of robbery include that of the use of illegal drugs. In the robbery crimes that he was involved in, the victims never really saw a gun displayed but they saw that the defendant was holding something inside his pocket. There was even once instance that one of the victims thought it was a knife.

With further investigation, the source who was also there during one of the trial hearings that it was a starter pistol under the possession of Garcia. He placed it against the body of the victims so as to threaten them and give in to his demands easily even if his pistol is not capable of discharging any bullets. It was between the months of April and May in 1989 that he committed numerous robberies within the area of Washington Heights.

His usual routine according to an expert petty larceny it’s the case that he would enter the vehicle of his targeted victim while it is still at full stop due to the traffic light. He would usually appear with his pistol and demand money from the victim before finally running away. He was arrested by May but was released on July 3, 1989 through bail. But just after ten days, he was arrested again and charged with another series of robbery counts. On August 14 of the same year, he was found guilty of all the counts bestowed upon him.

Due to the robbery spree, he has committed for several months, majority in the community wanted him to even pay for his crime longer than the six years that he was given by the court. It was difficult for the court also to get information from Garcia himself since he does not seem to have any good memory at all. His excuse with this is that he has been a long time drug user already which made it difficult for him to remember things pretty well, even when it comes to the crimes he did. However, he admitted the facts that he truly went into a robbing spree with his starter pistol.

In finality, Garcia was still judged to pay for his crimes in not more than six years. This is because the court considered that he is still way too young and immature to be of the right common sense all the time considering that he is also a habitual drug user. His sentence was also lessened since the weapon he used during the crimes did not cause any of his victims any physical harm or injury.

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