N.Y. Penal Law § 155.05(2)(e) (McKinney 2013)theamazonpost.com/post-trial-brief-pdfs/brief/58a_NYPenalLAW155.05.pdfHISTORICAL AND STATUTORY NOTES Derivation Subd. 1. Penal Law 1909

Effective:[See Text Amendments]

McKinney's Consolidated Laws of New York Annotated CurrentnessPenal Law (Refs & Annos)

Chapter40. Of the Consolidated Laws (Refs & Annos)Part Three. Specific Offenses

Title J. Offenses Involving TheftArticle 155. Larceny (Refs & Annos)

§ 155.05 Larceny; defined

1. A person steals property and commits larceny when, with intent to deprive another of property or to appropri-ate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from anowner thereof.

2. Larceny includes a wrongful taking, obtaining or withholding of another's property, with the intent prescribedin subdivision one of this section, committed in any of the following ways:

(a) By conduct heretofore defined or known as common law larceny by trespassory taking, common law lar-ceny by trick, embezzlement, or obtaining property by false pretenses;

(b) By acquiring lost property.

A person acquires lost property when he exercises control over property of another which he knows to havebeen lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or the natureor amount of the property, without taking reasonable measures to return such property to the owner;

(c) By committing the crime of issuing a bad check, as defined in section 190.05;

(d) By false promise.

A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of an-other by means of a representation, express or implied, that he or a third person will in the future engage inparticular conduct, and when he does not intend to engage in such conduct or, as the case may be, does not be-lieve that the third person intends to engage in such conduct.

McKinney's Penal Law § 155.05 Page 1

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

In any prosecution for larceny based upon a false promise, the defendant's intention or belief that the promisewould not be performed may not be established by or inferred from the fact alone that such promise was notperformed. Such a finding may be based only upon evidence establishing that the facts and circumstances ofthe case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or be-lief, and excluding to a moral certainty every hypothesis except that of the defendant's intention or belief thatthe promise would not be performed;

(e) By extortion.

A person obtains property by extortion when he compels or induces another person to deliver such property tohimself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the act-or or another will:

(i) Cause physical injury to some person in the future; or

(ii) Cause damage to property; or

(iii) Engage in other conduct constituting a crime; or

(iv) Accuse some person of a crime or cause criminal charges to be instituted against him; or

(v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person tohatred, contempt or ridicule; or

(vi) Cause a strike, boycott or other collective labor group action injurious to some person's business; exceptthat such a threat shall not be deemed extortion when the property is demanded or received for the benefit ofthe group in whose interest the actor purports to act; or

(vii) Testify or provide information or withhold testimony or information with respect to another's legalclaim or defense; or

(viii) Use or abuse his position as a public servant by performing some act within or related to his officialduties, or by failing or refusing to perform an official duty, in such manner as to affect some person ad-versely; or

(ix) Perform any other act which would not in itself materially benefit the actor but which is calculated toharm another person materially with respect to his health, safety, business, calling, career, financial condi-tion, reputation or personal relationships.



CREDIT(S)

(L.1965, c. 1030.)

HISTORICAL AND STATUTORY NOTES

Derivation

Subd. 1. Penal Law 1909, § 1290, added L.1942, c. 732, § 2, amended L.1943, c. 224.

Subd. 2. New, but see Penal Law 1909, §§ 194-b, 466, 662, 665, 850, 851, 856, 857, 858, 922, 925-b, 930,937-a, 945, 947, 949, 960, 1292-a, 1293, 1293-c, 1300, 1302, 1310 to 1313, 1347, 1838, 1863, 1864, 1865,1867, 1873, 1911. Section 194-b was transferred to Agriculture and Markets Law, § 366. Section 466, for his-tory, see Derivation note set out under section 140.04. Section 662 was from Penal Code 1881. Section 591amended L.1892, c. 662, § 19. Section 665 was from Penal Code 1881. Section 611 amended L.1892, c. 692, §1; L.1906, c. 286, §§ 1, 2; L.1893, c. 692, § 1. Section 850, amended L.1917, c. 518, was from Penal Code 1881,§ 552. Section 851, amended L.1911, cc. 121, 602; L.1917, c. 518, was from Penal Code 1881, § 553. Section856 amended L.1909, c. 368, was from Penal Code 1881, § 558. Section 922 was from Penal Code 1881, § 151.Section 857, amended L.1911, c. 121, was from Penal Code 1881, § 560. Section 858 was from Penal Code1881, § 561. Section 925-b added L.1934, c. 445. Section 930, was from Penal Code 1881. Section 564,amended L.1899, c. 327, § 1. Section 937-a added L.1956, c. 653. Section 945 was from Penal Code 1881, §674-f, added L.1899, c. 327, § 2. Section 947 was from Penal Code 1881, § 544, amended L.1905, c. 556, § 1.Section 949 was from Penal Code 1881, § 482. Section 960 added L.1924, c. 577. Section 1292-a, addedL.1918, c. 314, § 1, amended L.1923, c. 505; L.1927, c. 678; L.1931, c. 665; L.1933, c. 420; L.1934, c. 169.Section 1293 amended L.1918, c. 314, § 2, was from Penal Code 1881, § 529. Section 1293-c added L.1916, c.367, amended L.1941, c. 883; L.1955, c. 477. Section 1300 was from Penal Code 1881, § 539. Section 1302 wasfrom Penal Code 1181, §§ 541 to 543. Section 1310, amended L.1918, c. 460, was from L.1881, c. 419, §§ 1, 2.Sections 1311 to 1313 added L.1919, c. 521. Section 1347, formerly 1351, renumbered 1347, L.1940, c. 561, §3, was from Penal Code 1881, § 254. Section 1838 was from Penal Code 1881, § 114. Section 1863 was fromPenal Code 1881, § 165, amended L.1892, c. 662, § 2. Section 1864 was from Penal Code 1881, §§ 166, 167.Section 1865 was from Penal Code 1881, § 470. Section 1867 was from Penal Code 1881, § 472. Section 1873,for history, see § 145.00 note above. Section 1911, for history, see Derivation note set out under section 120.20.

PRACTICE COMMENTARY

by William C. Donnino

See Practice Commentary at the end of Penal Law § 155.00.

CROSS REFERENCES

“Benefit”, “physical injury” and “public servant” defined, see Penal Law § 10.00.Bribe receiving and larceny by means of extortion are not mutually exclusive crimes, see Penal Law §200.15.



Coercion, see Penal Law § 135.60 et seq.Duress, see Penal Law § 40.00.Enterprise corruption, see Penal Law § 460.00 et seq.Extortion designated grand larceny regardless of value of property, see Penal Law §§ 155.30, 155.40.Falsifying business or public records, see Penal Law § 175.00 et seq.Lost and found property, see Personal Property Law § 251 et seq.Obstructing governmental administration by means of intimidation, physical force or interference, seePenal Law § 195.05.Official misconduct, see Penal Law § 195.00.

LAW REVIEW AND JOURNAL COMMENTARIES

Attorneys, tape recorders and perfidy. Stanley S. Arkin, 211 N.Y.L.J. 3 (April 14, 1994).

Blackmail and the practice of law--Part I. Stanley S. Arkin, 213 N.Y.L.J. 3 (Feb. 7, 1995).

Co-ownership of embezzled property as a defense. 29 N.Y.U.L.Rev. 759.

Larceny by husband of wife's property. 21 Brook.L.Rev. 271.

The New York Penal Law: a prosecutor's evaluation. 18 Buff.L.Rev. 269 (1969).

A rationale of the law of aggravated theft. 54 Colum.L.Rev. 84.

Taking by owner from one with special property interest. 14 Alb.L.Rev. 93.

Unraveling the paradox of blackmail. Lindgren. 84 Colum.L.Rev. 670 (1984).

RESEARCH REFERENCES

ALR Library

4 ALR, Federal 881, Elements of Offense Proscribed by the Hobbs Act (18 U.S.C.A. § 1951) Against Racket-eering in Interstate or Foreign Commerce.

57 ALR 6th 445, What is “Property of Another” Within Statute Proscribing Larceny, Theft, or Embezzlement ofProperty of Another.

75 ALR 4th 91, Requirement of Jury Unanimity as to Mode of Committing Crime Under Statute Setting Forththe Various Modes by Which Offense May be Committed.

70 ALR 4th 786, Negligence, Inattention, or Professional Incompetence of Attorney in Handling Client's Affairsin Bankruptcy Matters as Ground for Disciplinary Action--Modern Cases.

66 ALR 4th 342, Negligence, Inattention, or Professional Incompetence of Attorney in Handling Client's Affairs



in Estate or Probate Matters as Ground for Disciplinary Action--Modern Cases.

19 ALR 4th 959, Modern Status of Rule that Crime of False Pretenses Cannot be Predicated Upon Present Inten-tion Not to Comply With Promise or Statement as to Future Act.

8 ALR 4th 1068, Retailer's Failure to Pay to Government Sales or Use Tax Funds as Constituting Larceny orEmbezzlement.

18 ALR 3rd 259, Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information.

24 ALR 3rd 986, Criminal Liability for Unauthorized Use of Credit Card.

98 ALR 3rd 357, Attorney's Conviction in Foreign or Federal Jurisdiction as Ground for Disciplinary Action.

40 ALR 2nd 908, Coercion, Compulsion, or Duress as Defense to Criminal Prosecution.

54 ALR 2nd 1361, Punitive or Exemplary Damages for Conversion of Personalty by One Other than ChattelMortgagee or Conditional Seller.

19 ALR 2nd 227, Determination of Character of Former Crime as a Felony, So as to Warrant Punishment of anAccused as a Second Offender.

31 ALR 1479, Power of Court to Pass on Competency. Legality, or Sufficiency of Evidence on Which Indict-ment is Based.

43 ALR 54, Disbarment for Failure to Account for Money of Client.

64 ALR 436, Incompetency, Negligence, Illness, or the Like, of Counsel, as a Ground for New Trial or Reversalin Criminal Case.

113 ALR 1179, What Amounts to Conviction or Satisfies Requirement as to Showing of Conviction, WithinStatute Making Conviction a Ground for Refusing to Grant or for Canceling License or Special Privilege.

137 ALR 504, Malice and Want of Probable Cause as Element or Factor of Action for False Imprisonment.

140 ALR 1466, Libel and Slander: Privilege Regarding Communications to Police or Other Officer RespectingCommission of Crime.



169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define OffenseCharged.

174 ALR 173, False Pretenses or Confidence Game Through Means of Worthless Check or Draft.

161 ALR 316, Comment Note.--Time as of Which Value of Stock or Bonds is to be Taken for Purpose of Ascer-taining Damages.

144 ALR 1383, What Amounts to Asportation Which Will Support Charge of Larceny.

136 ALR 187, Organization Sought to be Incorporated Under an Unconstitutional Statute as a De Facto Corpor-ation.

116 ALR 997, Offense of Larceny, Embezzlement, Robbery, or Assault to Commit Robbery, as Affected by De-fendant's Intention to Take or Retain Money or Property in Payment of, or as Security for, a Claim, or to Collecta Debt, or to...

105 ALR 575, Erroneous Instructions by Court to Grand Jury as Ground for Quashing Indictment.

95 ALR 486, Construction, Application, and Effect of Criminal Statute Directed Specifically Against Use ofWorthless, False, or Bogus Check or Draft.

62 ALR 354, Unauthorized Use of Another's Property by One Lawfully in Possession Thereof as Larceny.

26 ALR 381, Appropriation of Property After Obtaining Possession by Fraud as Larceny.

17 ALR 199, Obtaining Money for Goods Not Intended to be Delivered as False Pretense.

12 ALR 804, Intent to Convert Property to One's Own Use or to the Use of Third Person as Element of Larceny.

Encyclopedias

5 Am. Jur. Proof of Facts 2d 267, Ineffective Assistance of Counsel.

Forms

Carmody-Wait, 2d § 203:9, Determining Whether Sentence is Excessive.



Carmody-Wait, 2d § 172:32, Jurisdiction Where Conduct Occurred in County Sufficient to Establish Element ofOffense.

Carmody-Wait, 2d § 182:67, Effect of Statements Raising Possibility of Defense--Defense of Mental Disease orDefect; Competence to Enter Plea; Element of Intent.

Carmody-Wait, 2d § 200:14, Elements and Incidents of Offense.

Carmody-Wait, 2d § 200:81, What Constitutes Lesser Included Offense.

Carmody-Wait, 2d § 178:339, Circumstantial Evidence to Support Indictment.

Carmody-Wait, 2d § 178:363, Amendment of Bill of Particulars.

Carmody-Wait, 2d § 184:160, Determination of Prejudice.

Carmody-Wait, 2d § 184:175, Particular Actions that Constitute Strategy.

Carmody-Wait, 2d § 195:158, Lapse of Time; Remoteness of Crimes.

Carmody-Wait, 2d § 207:134, Sufficiency of Evidence.

McKinney's Forms, Business Corporation Law § 12:10, Resignation and Removal; Vacancies.

McKinney's Forms, Business Corporation Law § 13:25, New York Law Applicable to Foreign Corporations.

Treatises and Practice Aids

Jury Charges in NY Criminal Cases § 5:33, Justification--Physical Force--Defense of Property.

Jury Charges in NY Criminal Cases § 50:1, Nature and Definition of Offense.

Jury Charges in NY Criminal Cases § 50:4, Nature and Definition of Offense--False Promise.

Jury Charges in NY Criminal Cases § 69:2, First Degree--Causing Serious Physical Injury--Model Charge.

Jury Charges in NY Criminal Cases § 69:4, Threatening to Use Dangerous Instrument--Model Charge.



Jury Charges in NY Criminal Cases § 69:5, Threatening to Use Dangerous Instrument--Displaying Firearm--Model Charge.

Jury Charges in NY Criminal Cases § 69:9, Second Degree--Aided by Another Person--Model Charge.

Jury Charges in NY Criminal Cases § 77:3, Using Stolen Credit Card--Model Charge.

Jury Charges in NY Criminal Cases § 16:29, Possession of Burglar's Tools--Model Charge.

Jury Charges in NY Criminal Cases § 35:20, First Degree--Model Charge (10 or More Victims).

Jury Charges in NY Criminal Cases § 35:21, First Degree--Another Form ($1,000).

Jury Charges in NY Criminal Cases § 35:23, Second Degree--Model Charge.

Jury Charges in NY Criminal Cases § 35:25, Defrauding the Government--Model Charge.

Jury Charges in NY Criminal Cases § 50:15, Fourth Degree--Value--Attempt--Model Charge.

Jury Charges in NY Criminal Cases § 50:19, Fourth Degree--Taking from Another Person--Model Charge.

Jury Charges in NY Criminal Cases § 50:29, Petit Larceny--Model Charge.

Jury Charges in NY Criminal Cases § 69:11, Second Degree--Causing Physical Injury--Model Charge.

Jury Charges in NY Criminal Cases § 69:12, Second Degree--Causing Physical Injury-Commentary--AnotherCharge (Attempt).

Jury Charges in NY Criminal Cases § 69:13, Second Degree--Displaying Firearm--Model Charge.

Jury Charges in NY Criminal Cases § 69:13.50, Carjacking--Model Charge.

Jury Charges in NY Criminal Cases § 77:12.70, Telephone Access Device--Another Charge(Telecommunications Services).

Employment Coordinator Labor Relations § 2:37, New York.



Employment Coordinator Labor Relations § 40:73, Strikes Against Primary Employer.

Employment Coordinator Labor Relations § 40:74, Picketing Against Primary Employer.

Employment Coordinator Labor Relations § 40:75, Boycotts Against Primary Employer.

NY Prac. Comm. Lit. in NY State Courts § 34:18, Rules of Conduct.

NY Prac. Comm. Lit. in NY State Courts § 90:19, Financial Crimes--Larceny--Penal Law Article 155.

New York Practice, Enforcing Judgments and Collections § 3:277, Contents of Demand Letter--Liability for Vi-olations--Criminal Prosecution.

New York Practice, New York Criminal Law § 12:4, Larceny--Who is an “Owner” of Property?

New York Practice, New York Criminal Law § 12:5, Larceny--Intent to Deprive or Appropriate Permanently.

New York Practice, New York Criminal Law § 12:6, Forms of Larceny.

New York Practice, New York Criminal Law § 12:7, Forms of Larceny--Common Law Forms.

New York Practice, New York Criminal Law § 12:8, Forms of Larceny--Newer Forms.

New York Practice, New York Criminal Law § 12:9, Forms of Larceny--Larceny by Extortion.

New York Practice, New York Criminal Law § 14:3, Use or Threatened Use of Force.

New York Practice, New York Criminal Law § 15:1, Overview.

New York Practice, New York Criminal Law § 19:2, Issuing Bad Check.

New York Practice, New York Criminal Law § 20:7, Commercial Bribing and Bribe Receiving--Extortion andCoercion No Defense.

New York Practice, New York Criminal Law § 25:7, Bribing and Bribe Receiving by Witness--Extortion andCoercion No Defense.



New York Practice, New York Criminal Law § 8:12, Coercion.

New York Practice, New York Criminal Law § 19:18, Scheme to Defraud.

New York Practice, New York Criminal Law § 19:20, Scheme to Defraud--Intent to Defraud.

New York Practice, New York Criminal Law § 19:24, Identity Theft.

New York Practice, New York Criminal Law § 20:11, Bribing and Bribe Receiving by Labor Official--Defenseof Extortion or Coercion.

New York Practice, New York Criminal Law § 25:10, Intimidating a Victim or Witness.

New York Practice, New York Pretrial Criminal Procedure § 1:4, Geographical Jurisdiction of Offenses--Counties.

Substantive Criminal Law § 2.2, Interpretation of Criminal Statutes.

Substantive Criminal Law § 18.3, Other Restraints on Freedom of Action.

Substantive Criminal Law § 19.2, Larceny--The Trespass.

Substantive Criminal Law § 19.3, Larceny--Taking and Carrying Away.

Substantive Criminal Law § 19.5, Larceny--Intent to Steal.

Substantive Criminal Law § 19.7, False Pretenses.

Substantive Criminal Law § 20.4, Extortion or Blackmail.

Wharton's Criminal Law § 343, Distinctions.

Wharton's Criminal Law § 355, Lost Property.

Wharton's Criminal Law § 410, False Pretenses by Statute.



Wharton's Criminal Law § 419, Present Intention Not to Perform Promise--By Recent Statutes.

Wharton's Criminal Law § 435, Bad Checks.

NOTES OF DECISIONS

Ability or means to pay, false pretenses 33Abuse of public position, extortion 47Accessories 53Accusation or prosecution of crime, extortion 44Admissibility of evidence 60Aggregation 54Appropriation of property 12-20

Appropriation of property - In general 12Appropriation of property - Asportation 13Appropriation of property - Commercial transactions 14Appropriation of property - Fraud 20Appropriation of property - Misappropriation of property 15Appropriation of property - Negligence 17Appropriation of property - Public money 16Appropriation of property - Shoplifting 18Appropriation of property - Withholding of property 19

Asportation, appropriation of property 13Assistance of counsel 56Bad checks 22Bailments, embezzlement 27Bank accounts 23Boycotts or strikes, extortion 46Commercial transactions, appropriation of property 14Common law larceny, generally 6Construction and application 2Construction with federal laws 3Construction with other laws 4Credit cards 23.5Defenses, generally 61Dishonored check 22Embezzlement 26-29

Embezzlement - In general 26Embezzlement - Bailments 27Embezzlement - Partnerships 28Embezzlement - Trustee or fiduciary relationship 29

Extortion 42-51Extortion - In general 42Extortion - Abuse of public position 47



Extortion - Accusation or prosecution of crime 44Extortion - Hatred, contempt or ridicule threatened 45Extortion - Inchoate extortion offenses 51Extortion - Private right of action 50Extortion - Property subject to extortion 48Extortion - Strikes or boycotts 46Extortion - Threats, generally 43Extortion - Time of consummation 49

False pretenses 30-37False pretenses - In general 30False pretenses - Impersonation 32False pretenses - Intent 31False pretenses - Means or ability to pay 33False pretenses - Misrepresentations 34False pretenses - Omissions 35False pretenses - Reliance 36False pretenses - Title to property 37

False promises 40-41, 64False promises - In general 40False promises - Intent 41False promises - Sufficiency of evidence 64

Fiduciary relationship, embezzlement 29Fraud, appropriation of property 20Fraud involving public funds 38Geographical jurisdiction 55Hatred, contempt or ridicule threatened, extortion 45Impersonation, false pretenses 32Inchoate extortion offenses 51Indictment 57Ineffective assistance of counsel 56Instructions 65Insufficient funds 22Intent, false pretenses 31Intent, false promises 41Intent to deprive or appropriate 9-11, 63

Intent to deprive or appropriate - In general 9Intent to deprive or appropriate - Permanent appropriation 11Intent to deprive or appropriate - Proof of intent to deprive or appropriate 10Intent to deprive or appropriate - Sufficiency of evidence 63

Jury selection 59Larceny by trick 25Lesser included offenses 58Lost property 21Means or ability to pay, false pretenses 33Mental capacity of victim 7



Misappropriation of property 15Misrepresentations, false pretenses 34Negligence, appropriation of property 17Omissions, false pretenses 35Ownership of property 8Partnerships, embezzlement 28Permanent appropriation, intent to deprive or appropriate 11Pleadings 56.5Preservation of issues 70Private right of action, extortion 50Proof of intent to deprive or appropriate 10Property subject to extortion 48Prosecution or accusation of crime, extortion 44Public assistance fraud 38Public money, appropriation of property 16Purpose 5Reduction of charges 67Reliance, false pretenses 36Review 69Sentence and punishment 66Shoplifting, appropriation of property 18Spouses 52Strikes or boycotts, extortion 46Sufficiency of evidence 62-64

Sufficiency of evidence - In general 62Sufficiency of evidence - False promises 64Sufficiency of evidence - Intent to deprive or appropriate 63

Threats, generally, extortion 43Time of consummation, extortion 49Title to property, false pretenses 37Trespassory taking 24Trustee or fiduciary relationship, embezzlement 29Validity 1Verdict 68Victim, mental capacity of 7Voluntary delivery of property 39Weight of evidence 64.5Withholding of property, appropriation of property 19

1. Validity

Federal and New York statutes that proscribe communication of threats made with intent to injure reputation arenot unconstitutionally overbroad; statutes are confined to threats to injure the reputation of another, that aremade with intent to extort money or things of value. U.S. v. Jackson, 1997, 986 F.Supp. 829, vacated 180 F.3d55, on rehearing 196 F.3d 383, certiorari denied 120 S.Ct. 2731, 530 U.S. 1267, 147 L.Ed.2d 993. Constitutional



Law 1830; Threats, Stalking, And Harassment 5

Federal and New York statutes that proscribe communication of threats are not unconstitutionally overbroad,even if they are not limited to threats to perform independently unlawful actions, such as kidnapping or physicalinjury. U.S. v. Jackson, 1997, 986 F.Supp. 829, vacated 180 F.3d 55, on rehearing 196 F.3d 383, certioraridenied 120 S.Ct. 2731, 530 U.S. 1267, 147 L.Ed.2d 993. Constitutional Law 1830; Threats, Stalking, AndHarassment 5

Instructions on elements of extortion appropriately left it to jury to decide whether defendant intended to extortmoney from alleged victim by threatening to send publisher story that defendant was victim's daughter born out-of-wedlock and, thus, governing federal and New York statutes were not void for vagueness as applied to de-fendant's conduct. U.S. v. Jackson, 1997, 986 F.Supp. 829, vacated 180 F.3d 55, on rehearing 196 F.3d 383, cer-tiorari denied 120 S.Ct. 2731, 530 U.S. 1267, 147 L.Ed.2d 993. Constitutional Law 1830; ConstitutionalLaw 4509(11); Extortion 5; Extortion 43

Scienter requirement of federal and New York extortion statutes helped to provide adequate notice of proscribedconduct and, thus, statutes were not void for vagueness as applied to defendant who allegedly intended to extortmoney from victim by threatening to send publisher story that defendant was victim's daughter born out-of-wedlock. U.S. v. Jackson, 1997, 986 F.Supp. 829, vacated 180 F.3d 55, on rehearing 196 F.3d 383, certioraridenied 120 S.Ct. 2731, 530 U.S. 1267, 147 L.Ed.2d 993. Constitutional Law 1830; Constitutional Law

4509(11); Extortion 5

New York's extortion and coercion statutes were not overbroad, as applied to conduct of chairman and executivedirector of county Democratic committee of threatening to withdraw committee's endorsement from judicial can-didates if they did not comply with demands to pay for joint campaign with other candidates; threats prohibitedby statutes were not expressions of ideas or advocacy that typically implicated First Amendment. People v. Feld-man, 2005, 7 Misc.3d 794, 791 N.Y.S.2d 361. Constitutional Law 1830; Extortion 5

New York's extortion and coercion statutes were not impermissibly vague, as applied to conduct of chairmanand executive director of county Democratic committee of threatening to withdraw committee's endorsementfrom judicial candidates if they did not comply with demands to pay for joint campaign with other candidates;alleged threats embodied neither legitimate political decision-making nor a legitimate exercise of party discip-line, and statutes adequately defined the criminal conduct for the police officers, judges and juries who wouldenforce them. People v. Feldman, 2005, 7 Misc.3d 794, 791 N.Y.S.2d 361. Extortion 5

New York's extortion and coercion statutes did not violate First Amendment right to free speech or right of asso-ciation, as applied to conduct of chairman and executive director of county Democratic committee of threateningto withdraw committee's endorsement from judicial candidates if they did not comply with demands to pay forjoint campaign with other candidates; statutes were focused on threats of damage made for no legitimate pur-pose. People v. Feldman, 2005, 7 Misc.3d 794, 791 N.Y.S.2d 361. Constitutional Law 1477; ConstitutionalLaw 1830; Extortion 5



Finding by grand jury that defendant's conduct in selling employer's goods at less than market value to jobbers,who would subsequently resell for profit and share profit with defendant, constituted larceny, as well as com-mercial bribe receiving, did not render this section unconstitutional under due process void for vagueness doc-trine since this section adequately defines means by which larceny may be committed and this section was notimpermissibly vague in that it did not give adequate notice that defendant's conduct, which could constitutecommercial bribe receiving, could also constitute larceny. People v. Silverman, 1980, 106 Misc.2d 468, 434N.Y.S.2d 319. Constitutional Law 4509(17); Larceny 2

2. Construction and application

New York law offenses of commercial bribery and extortion are mutually exclusive. Kraft General Foods, Inc.v. Cattell, 1998, 18 F.Supp.2d 280. Criminal Law 29(1)

For conduct to constitute wrongful taking or obtaining of property, so as to be larceny, property must be taken orobtained by one or more of the means set forth in larceny statute; if property is not taken or obtained in such amanner, taking or obtaining of such property cannot be “larceny.” People v. Gbohou, 2000, 186 Misc.2d 324,718 N.Y.S.2d 791. Larceny 12

“Theft” and “stealing” are synonymous and either is a popular term for “larceny,” but the word “theft,” a widerterm than “larceny,” includes other forms of wrongful deprivation of property of another. Ludwig v. Pacific FireIns. Co. of New York, 1924, 123 Misc. 189, 204 N.Y.S. 465.

3. Construction with federal laws

Public charge provision of Medicaid regulation, under which providers of personal care services were entitled toreimbursement at “the rate the provider charges the general public for personal care services,” as applied in de-fendant's criminal prosecution for grand larceny and filing of false instruments, was not impermissibly vagueunder the Due Process Clause, despite defendant's claim that it was addressed exclusively to New York's Depart-ment of Social Services (DSS), where it was apparent to anyone operating in the field of Medicaid that a serviceprovider was not allowed to overcharge the state and conceal that he was doing so, such that defendant knew hewas committing a wrongful act when he concealed from DSS his agency's true rate for services to the public.Rubin v. Garvin, C.A.2 (N.Y.)2008, 544 F.3d 461. Constitutional Law 4509(12); Constitutional Law4509(17); Health 487(4)

Employer's allegations were sufficient to plead violations of Hobbs Act and New York extortion statute as Rack-eteer Influenced and Corrupt Organizations Act (RICO) predicate acts, where employer alleged that it reason-ably believed that local union and others had power to harm them by refusing access to union job sites, that localunion and others would refuse employer access unless certain payments were made, and that nonpayment byemployer would result in preclusion from economic benefit of performing services on existing or future unionjobs. National Elec. Ben. Fund v. Heary Bros. Lightning Protection Co., Inc., 1995, 931 F.Supp. 169. RacketeerInfluenced And Corrupt Organizations 70



New York felony of coercion in the first-degree was not “racketeering activity” as defined in RICO, notwith-standing government's argument that coercion under New York law fell within “extortion” as used in RICOdefinition; distinction between coercion and larceny by extortion was not trivial. U.S. v. Private Sanitation In-dustry Ass'n of Nassau/Suffolk, Inc., 1992, 793 F.Supp. 1114. Racketeer Influenced And Corrupt Organizations

7

Debtor's guilty plea in New York state court to petit larceny established all elements of embezzlement under fed-eral law and conclusively established that debt was nondischargeable as being product of embezzlement for col-lateral estoppel purposes; association alleged that debtor as insurance broker received deposits from associationmembers to ensure that future premiums would be paid when due, but that when policy was cancelled with nopremiums due and owing debtor did not return security deposits despite demand therefor, and New York lawdefined as larceny all forms of theft, including embezzlement. In re Jardula, 1990, 122 B.R. 649. Judgment648

For purposes of attorney disciplinary proceedings, federal crime of extortion is criminal offense which, if com-mitted within state, would constitute felony under state law, essentially similar to felony of larceny by extortion.In re Sotiriou (2 Dept. 1999) 259 A.D.2d 108, 692 N.Y.S.2d 720. Attorney And Client 39

4. Construction with other laws

Domestic Relations Law, § 50 et seq., giving married women the right to own property and to sue and be suedwith respect to their property, abrogated, without any corresponding change in former Penal Law 1909, § 1290,the common-law rule that there could be no theft by a husband of his wife's property. People v. Morton, 1954,308 N.Y. 96, 123 N.E.2d 790. Larceny 7

Defendant could not be charged with larceny under Lien Law for misappropriation of $7,000 of trust funds giv-en to him by homeowner to build addition to her garage under Lien Law provision which did not includehomeowners as beneficiaries of trust funds at time of the events. People v. Hollowell (4 Dept. 1990) 168 A.D.2d970, 565 N.Y.S.2d 349. Embezzlement 2

There is no conflict between statute [McKinney's Penal Law § 190.65] prohibiting scheming to defraud in firstdegree and statute [McKinney's Penal Law § 155.05] prohibiting larceny; thus, former statute can be utilized tocharge a bad check issuer whose sole intent is larceny while latter statute can be utilized to apprehend individualwho, with a fraudulent intent, schemes to victimize large numbers of people. People v. Palmer (3 Dept. 1985)108 A.D.2d 545, 490 N.Y.S.2d 293. False Pretenses 6; Larceny 1

Tax Law § 1145 is not the exclusive remedy for sales tax violation but, rather, this section may also be used topunish failure to pay sales tax, in that the two statutes are not in irreconcilable conflict since elements of the twooffenses differ, and the tax law section specifically allows use of other appropriate sanctions. People v. Valenza,1981, 108 Misc.2d 86, 436 N.Y.S.2d 937, affirmed 90 A.D.2d 466, 454 N.Y.S.2d 1018, reversed 60 N.Y.2d 363,469 N.Y.S.2d 642, 457 N.E.2d 748. Embezzlement 1



5. Purpose

Former Penal Law 1909, § 1290 was aimed at eliminating the confusing distinctions that had previously differ-entiated various types of theft, but it was not designed to broaden the scope of the crime of larceny or designateas criminal that which was previously innocent. People v. Karp, 1948, 298 N.Y. 213, 81 N.E.2d 817. Larceny

2

6. Common law larceny, generally

“Larceny” under former Penal Law § 1290, included original common-law crimes of larceny by asportation andlarceny by trick and deceit, and also embezzlement and obtaining property by false pretenses, crimes of statutoryorigin. Sutro Bros. & Co. v. Indemnity Ins. Co. of North America, 1967, 264 F.Supp. 273, affirmed 386 F.2d798. See, also, People v. Katz, 1913, 209 N.Y. 311, 103 N.E. 305; People v. Neff, 1908, 191 N.Y. 210, 83 N.E.970; People v. Miller, 1902, 169 N.Y. 339, 62 N.E. 418; People v. Lawrence, 1893, 137 N.Y. 517, 33 N.E. 547.Embezzlement 1; False Pretenses 1; Larceny 1; Larceny 14(1)

Under this chapter, common-law distinctions between particular theories of larceny have been eliminated, en-abling conviction upon pleading and proof establishing larceny, regardless of the underlying common-law of-fense. Silvestro v. Kavanagh (3 Dept. 1983) 98 A.D.2d 833, 470 N.Y.S.2d 480, appeal denied 61 N.Y.2d 603,472 N.Y.S.2d 1027, 460 N.E.2d 1360, reargument denied 61 N.Y.2d 905, 474 N.Y.S.2d 1027, 462 N.E.2d 1205.Larceny 1

Common-law distinctions between obtaining property under false pretenses, embezzlement and larceny nolonger exist in New York and all such crimes are embraced within definition of larceny. Lapidus v. GovernmentEmp. Ins. Co., 1968, 57 Misc.2d 649, 293 N.Y.S.2d 174. See, also, People v. Krumme, 1936, 161 Misc. 278,292 N.Y.S. 657. Embezzlement 1; False Pretenses 1; Larceny 1

7. Mental capacity of victim

If property is taken or obtained from a person who is mentally unable to consent to the transfer, the taking or ob-taining is trespassory taking, which is form of larceny actionable under larceny statute; however, victim musthave been unable to consent and defendant must have been cognizant of victim's diminished capacity for the tak-ing or obtaining to be “larceny.” People v. Gbohou, 2000, 186 Misc.2d 324, 718 N.Y.S.2d 791. Larceny 13

8. Ownership of property

Evidence was legally sufficient to establish that victim named in indictment, in prosecution for grand larceny inthe second degree, was owner of stolen funds; evidence showed that victim had right of possession to funds inher corporation's bank account superior to that of defendant. People v. Stuart (1 Dept. 2008) 51 A.D.3d 547, 858N.Y.S.2d 158, leave to appeal denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664. Larceny 60

9. Intent to deprive or appropriate--In general



A defendant's failure to report his fuel importation and pay state taxes due thereon is not a taking, obtaining, orwithholding of moneys that belonged to the state, as required to prove offense of larceny, under New York law,any more than a debtor's intentional failure to pay a debt is larceny of the creditor's moneys. Porcelli v. U.S.,C.A.2 (N.Y.)2002, 303 F.3d 452, certiorari denied 123 S.Ct. 945, 537 U.S. 1113, 154 L.Ed.2d 788. Larceny

12

Law of New York state pertaining to larceny may, but does not always, require fraudulent intent. In re Sokol,1994, 170 B.R. 556, affirmed 181 B.R. 27, rehearing denied 1995 WL 317315, motion to vacate denied 1996WL 428381, affirmed 108 F.3d 1370, affirmed and remanded 113 F.3d 303. Larceny 3(1)

That a man is presumed to intend the natural consequences of his act is not the test for inferring intent under thissection. People v. Ryan, 1977, 41 N.Y.2d 634, 394 N.Y.S.2d 609, 363 N.E.2d 334. False Pretenses 39

The gist of “larceny” is the taking and carrying away of personal property of another with the specific intent tosteal such property. People v. Levan, 1945, 295 N.Y. 26, 64 N.E.2d 341. See, also, People v. Paolilo, 1954, 15Misc.2d 1031, 132 N.Y.S.2d 161; People v. Becker, 1954, 132 N.Y.S.2d 15. Larceny 1

What constitutes the crime of taking the property of another for the use of the taker, or that of any other personthan the legal owner, is the intention with which the act is committed, and, accordingly, the crime of larceny nolonger necessitates a trespass; but it does need as an essential element that the “intent to deprive or defraud” theowner of his property, or of its use, shall exist, and the intent, by necessary implication, must be felonious, anintent to despoil the owner of his property. People ex rel. Perkins v. Moss, 1907, 187 N.Y. 410, 80 N.E. 383.See, also, People v. Laurence, 1893, 137 N.Y. 517, 33 N.E. 547; Thorne v. Turck, 1883, 94 N.Y. 90; McCourt v.People, 1876, 64 N.Y. 583; Wilson v. People, 1868, 39 N.Y. 459; Marcus v. Maryland Fidelity, etc., Co., 1914,164 A.D. 859, 149 N.Y.S. 1020; People v. Shears, 1913, 158 A.D. 577, 143 N.Y.S. 861, affirmed 209 N.Y. 610,103 N.E. 1129; Lathrop v. Mathers, 1911, 143 A.D. 376, 128 N.Y.S. 492; People v. Ghiggeri, 1910, 138 A.D.807, 123 N.Y.S. 489; Greene v. Fankhauser, 1910, 137 A.D. 124, 121 N.Y.S. 1004.

Former Penal Law 1909, § 1302 requires as an element of criminality in its violation a conscious and wilful in-tent to disregard its prohibitions, and where such intent exists, its criminality is in no way lessened by the factthat with the conscious intent to violate said section, there exists at the same time an intent to make future resti-tution after such violation. People v. Shears (2 Dept. 1913) 158 A.D. 577, 143 N.Y.S. 861, affirmed 209 N.Y.610, 103 N.E. 1129.

The intention that former Penal Law 1909, § 1290 requires must be something more than an intention to retainpossession of the property without an intent to actually appropriate the property, although the owner of the prop-erty would be necessarily deprived of its possession while such retention continued. People v. Kenny (1 Dept.1909) 135 A.D. 380, 119 N.Y.S. 854.

Evidence was legally sufficient to establish that conduct by chairman and executive director of county Demo-cratic committee, of threatening to withdraw committee's endorsement from judicial candidates if they did not



comply with demands to pay for joint campaign with other candidates, did not materially benefit Democraticparty, as required to support indictment for charges of coercion in the second degree; demands were made daysbefore primary election and one month after endorsements were given, and withdrawing endorsement could beviewed as weakening party's influence. People v. Feldman, 2005, 7 Misc.3d 794, 791 N.Y.S.2d 361. IndictmentAnd Information 10.2(8)

Existence of lease agreement of vehicle does not preclude charge of larceny by embezzlement for theft ofvehicle by lessee; once lessee forms intent to convert vehicle for his own benefit and permanent derogation ofrights of owner, he may not assert as against lessor any possessory rights law is bound to respect. People v. Raf-ferty, 1996, 167 Misc.2d 946, 640 N.Y.S.2d 740. Larceny 15(2)

Where defendant, after informing librarian of his intention, removed magazine from library because it containedwhat he regarded to be an obscene passage, defendant did not have requisite criminal intent to be found guilty oflarceny. People v. Gorton, 1969, 60 Misc.2d 833, 304 N.Y.S.2d 69. Larceny 3(1)

Criminal intent to defraud was essential ingredient of feloniously obtaining, withholding, and stealing fromowner an automobile in custody of another, with intent to defraud owner and custodian thereof. People v. Green-field, 1963, 40 Misc.2d 704, 243 N.Y.S.2d 836. Larceny 3(1)

Officers of corporate mortgagee could not be guilty of larceny merely because they negligently failed to preventcorporate mortgagee from misapplying proceeds of assignment of rents by defaulting corporate mortgagor ofwhich such officers had no knowledge; since a felonious intent to deprive or defraud owner of his property is es-sential to constitute a taking or misappropriation a “larceny.” People v. Watson, 1935, 154 Misc. 667, 278N.Y.S. 759, affirmed 245 A.D. 838, 282 N.Y.S. 235. Larceny 3(4)

10. ---- Proof of intent to deprive or appropriate

This section does not require proof that the defendant intended to deprive the specific true owner of his propertybut rather requires proof only of the fact that defendant intended to deprive another. People v. Keeffe, 1980, 50N.Y.2d 149, 428 N.Y.S.2d 446, 405 N.E.2d 1012. Larceny 3(1)

Great care must be exercised by trier of fact so as to insure that mere suspicion is not elevated into a finding oflarcenous intent; such a finding may be made only where the determination flows naturally and reasonably fromfacts in evidence and where the evidence excludes to a moral certainty any implication that defendant has com-mitted a mere civil wrong. People v. Luongo, 1979, 47 N.Y.2d 418, 418 N.Y.S.2d 365, 391 N.E.2d 1341. Lar-ceny 57

Required intent element of grand larceny in the fourth degree was not negated by defendant's statements duringplea allocution, where he admitted that it was his intent, when he found the victim's credit card, to keep the cardand use it himself. People v. Jones (3 Dept. 2010) 73 A.D.3d 1386, 900 N.Y.S.2d 797. Criminal Law273(4.1)



Larcenous intent is rarely susceptible of proof by direct evidence, and must usually be inferred from the circum-stances surrounding the defendant's actions. People v. Russell (3 Dept. 2007) 41 A.D.3d 1094, 838 N.Y.S.2d710, leave to appeal denied 10 N.Y.3d 964, 863 N.Y.S.2d 148, 893 N.E.2d 454. Larceny 57

In prosecution for grand larceny, by inducing department store employees to give defendant cash for “return” oftwo men's suits and bathrobe that had not been bought at store, element of intent was established by circum-stances under which return was arranged by defendant's accomplice and carried out by defendant. People v. Wil-liams (4 Dept. 2007) 38 A.D.3d 1301, 832 N.Y.S.2d 364. False Pretenses 49(2)

Trial court's decision to preliminarily preclude testimony that defendant rejected subsequent offers made by hisalleged accomplice to deposit additional checks was provident exercise of discretion, in prosecution for fourth-degree grand larceny premised on defendant's act of depositing two strangers' paychecks into his account andwithdrawing funds; defendant did not establish any connection between such evidence and his intent to commitlarceny with respect to checks that he did deposit, and court did not make final ruling, instead offering defendantopportunity to lay foundation for such evidence, which defendant failed to do. People v. Lane (1 Dept. 2006) 25A.D.3d 517, 808 N.Y.S.2d 225, leave to appeal granted 6 N.Y.3d 896, 817 N.Y.S.2d 631, 850 N.E.2d 678, af-firmed 7 N.Y.3d 888, 826 N.Y.S.2d 599, 860 N.E.2d 61. Larceny 44

Prosecution was not required to satisfy, and trial court was not required to charge, the higher moral certaintystandard of proof in prosecution for petit larceny; prosecution pursued case as general larceny and did not limitit to larceny by false promise theory in either the indictment, bill of particulars, or at trial, defense never reques-ted that they do so, and proof satisfied at least one other theory of larceny. People v. Houghtaling (3 Dept. 2005)14 A.D.3d 879, 787 N.Y.S.2d 733, leave to appeal denied 4 N.Y.3d 831, 796 N.Y.S.2d 587, 829 N.E.2d 680.Larceny 65

The mens rea element of larceny is not satisfied by an intent to temporarily take property without the owner'spermission. In re Shawn V. (2 Dept. 2004) 4 A.D.3d 369, 771 N.Y.S.2d 180. Larceny 3(4)

Person steals property when, with intent to deprive another of property or to appropriate the same to himself orherself, he or she wrongfully takes, obtains or withholds such property from owner thereof, and this element issatisfied by proof beyond reasonable doubt that defendant exercised possession and control over property, foreven a temporary period of time, in a manner inconsistent with owner's rights. People v. Yusufi (3 Dept. 1998)247 A.D.2d 648, 669 N.Y.S.2d 66, appeal denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454. Larceny

1; Larceny 12

Record failed to establish to a moral certainty that defendant's failure to perform contracts to build pole struc-tures was the result of fraudulent scheme rather than lack of ability to manage his business and, thus, evidencewas insufficient to sustain conviction for grand larceny premised on larceny by false promise. People v. Rogers(4 Dept. 1993) 192 A.D.2d 1092, 596 N.Y.S.2d 267. False Pretenses 49(4)

Sufficient evidence supported finding that defendant intended to deprive homeowner of trust funds or appropri-



ate them to himself when he misappropriated funds homeowner advanced to defendant for the construction of adeck at his house; after homeowner paid defendant $1,500 to construct the deck, defendant never returned, de-posited money in his business checking account and spent it for personal and business expenses and had nomoney left to purchase supplies to perform work and, at the time he spent the money, he owed over $18,000 andhad filed for bankruptcy one month earlier. People v. Hollowell (4 Dept. 1990) 168 A.D.2d 970, 565 N.Y.S.2d349. Embezzlement 44(2)

Larceny intent must be proven with respect to every element thereof; thus, in addition to having to prove an in-tent to deprive another of property or to appropriate the same to himself or to a third person, People must showthat defendant wrongfully intended to take the property, that is, it must be proven beyond reasonable doubt thatdefendant intended to exercise dominion and control over the property wholly inconsistent with continued rightsof owner. People v. Ricchiuti (2 Dept. 1983) 93 A.D.2d 842, 461 N.Y.S.2d 67. Larceny 3(4); Larceny57

11. ---- Permanent appropriation, intent to deprive or appropriate

Defendant did not commit a larceny involving a motor vehicle, as required to convict him of robbery in thesecond degree, absent any valid line of reasoning or permissible inferences to support a conclusion that defend-ant intended to exert permanent or virtually permanent control over the motor vehicle, or to cause permanent orvirtually permanent loss to owner of the possession and use of the motor vehicle. People v. Williams (4 Dept.2007) 41 A.D.3d 1252, 838 N.Y.S.2d 319. Robbery 24.15(2)

Juvenile's speedy return of his teacher's credit card did not negate juvenile's larcenous intent in acquiring card,since he clearly intended to “appropriate” card to himself by means of copying credit card number, as evincedby his use of number to make a purchase by telephone. In re Reinaldo O. (1 Dept. 1998) 250 A.D.2d 502, 673N.Y.S.2d 417, leave to appeal denied 92 N.Y.2d 809, 678 N.Y.S.2d 595, 700 N.E.2d 1231. Larceny 3(1)

A person is guilty of larceny when he wrongfully takes another's property with the intent to permanently deprivehim of that property or to deprive him of it for so extended a period of time that a major portion of its economicvalue is lost. People v. Ward (2 Dept. 1986) 120 A.D.2d 758, 503 N.Y.S.2d 74. Larceny 1

To warrant larceny conviction, intent to permanently deprive owner of his property must be established; tempor-ary withholding of property, by itself, would not constitute larcenous intent. People v. Hoyt (3 Dept. 1983) 92A.D.2d 1079, 461 N.Y.S.2d 569. See, also, People v. Guzman, 1979, 68 A.D.2d 58, 416 N.Y.S.2d 23. Larceny

3(4)

To establish the crime of larceny it is not necessary to show any specific criminal intent other than proved by theact itself, but to sustain a verdict convicting a defendant of a common-law larceny, there must be proof of thetaking and carrying away of personal property of another with the specific intent to steal such property, and sucha permanent appropriation as deprives the owner of the property must be contemplated. People v. Colavecchio(4 Dept. 1960) 11 A.D.2d 161, 202 N.Y.S.2d 119. Larceny 3(1)



12. Appropriation of property--In general

Attorney and client, who was also an attorney, did not commit grand larceny in the second degree by executing adefault judgment which was allegedly jurisdictionally defective because the attorney and client caused the sum-mons in a civil action to be served at a place where the new civil defendant was not living, even though it washer last known address. People v. Foster, 1989, 73 N.Y.2d 596, 543 N.Y.S.2d 1, 541 N.E.2d 1. Attorney AndClient 33; Larceny 12; Larceny 23

The uninvited taker of free goods or gifts is just as much a thief as if the goods were distributed for a price.People v. Colasanti, 1974, 35 N.Y.2d 434, 363 N.Y.S.2d 577, 322 N.E.2d 269. Larceny 6

Former Penal Law 1909, § 1290 is violated where a broker, directed to buy stock for a customer, deposits inbank a check given him for that purpose, draws upon it to pay individual and firm debts, fails to pay for thestock and is thereafter declared bankrupt. People v. Meadows, 1910, 199 N.Y. 1, 92 N.E. 128.

The appropriation of property contemplated by former Penal Law 1909, § 1290 means the taking of such prop-erty for the defendant's own use or that of some one other than the true owner. People v. Fitzgerald, 1909, 195N.Y. 153, 88 N.E. 27. See, also, People v. Reynolds, 1925, 214 A.D. 21, 210 N.Y.S. 768.

Taking element of a larceny is satisfied where the defendant exercised dominion and control over the propertyfor a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights.People v. Zombo (4 Dept. 2006) 28 A.D.3d 1233, 813 N.Y.S.2d 624, leave to appeal denied 7 N.Y.3d 794, 821N.Y.S.2d 824, 854 N.E.2d 1288, leave to appeal denied 7 N.Y.3d 797, 821 N.Y.S.2d 827, 854 N.E.2d 1291. Lar-ceny 12

General contractor's diversion of Lien Law trust funds to unrelated projects, in violation of Lien Law, was notmere nonperformance of contract obligations resulting from lack of business acumen, rather, contractor receivedchecks as payment for full contract price for project and was aware that his company was using funds receivedfor nontrust purposes. People v. Miller (3 Dept. 2005) 23 A.D.3d 699, 803 N.Y.S.2d 734, leave to appeal denied6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286. Mechanics' Liens 115(1)

Evidence that defendant snatched chain from complainant's neck, held it momentarily, and then dropped it ascomplainant gave chase satisfied the “taking” element of larceny statute; defendant's argument that the proofshowed that chain came off complainant's neck and fell to ground before it came into defendant's dominion andcontrol ignored the evidence that the chain came off immediately after defendant pulled at it. People v. Figueroa(1 Dept. 1995) 219 A.D.2d 509, 631 N.Y.S.2d 342, appeal denied 87 N.Y.2d 901, 641 N.Y.S.2d 231, 663N.E.2d 1261. Larceny 62(1)

Defendant executive director of hospital facility could not be convicted of larceny on ground that he caused cityto pay medicaid funds originally payable to hospital to hospital's assignee in satisfaction of loans made for ac-quisition of properties in which hospital had no interest, where defendant did not gain by reason of the loans, ac-quisitions or repayment of loans. People v. Matthew (2 Dept. 1975) 47 A.D.2d 749, 364 N.Y.S.2d 560. Larceny



15(1)

Passenger in car cannot be said to possess car, for purposes of possession element of larceny, possession ofstolen property, and criminal mischief, except to extent that driver is under his control or he and driver are other-wise acting in concert; passenger cannot control physically what is done with car, nor can it be inferred frommere presence in car that passenger has power to sell, direct, or otherwise dispose of property. People v. Sim-mons, 1988, 139 Misc.2d 859, 528 N.Y.S.2d 984. Larceny 27; Larceny 41; Malicious Mischief1; Malicious Mischief 7; Receiving Stolen Goods 4; Receiving Stolen Goods 8(1)

Beneficiary of Totten trust did not commit larceny when, after death of depositor, she used a bank card and theappropriate PIN number to withdraw funds from the trust at an ATM, without presenting to bank the requireddeath certificate; proof required by bank in order to disburse funds was not the relevant inquiry; title was the rel-evant inquiry, and title vested in beneficiary upon depositor's death. People v. McManus, 1988, 138 Misc.2d546, 524 N.Y.S.2d 631. Larceny 7

Statute defining crime of larceny is not intended to broaden scope of crime from common law and does not en-compass means of wrongful taking not listed within; declining to follow People v. Silverman, 106 Misc.2d 468,434 N.Y.S.2d 319. People v. Halloran, 1986, 131 Misc.2d 901, 501 N.Y.S.2d 985. Larceny 2

Generally, conversion is unauthorized exercise of dominion or control over property by one who is not the own-er, which interferes with and is in defiance of owner's possession and in context of larceny, the interference mustbe to the degree that the owner is deprived altogether of the economic value of his property. People v. Calandra,1983, 117 Misc.2d 972, 459 N.Y.S.2d 549. Larceny 12

Larceny does not require that wrongful means employed to acquire sought-after property be leveled directly atowner thereof, and where there is special relationship between person to whom larcenous conduct is directedand owner of property, of such nature that such person can reasonably be considered in position to effectuate ne-farious demand if he is willing, this section is applicable. People v. Slocum, 1979, 97 Misc.2d 728, 412N.Y.S.2d 321. Larceny 8

13. ---- Asportation, appropriation of property

Under New York law, dominion and control of the property, even for a moment, are the paramount elements of a“taking,” such that a person may be found guilty of larceny when he sits behind the wheel of a parked car, startsthe engine, and is seemingly about to drive away, even if there has been no movement of the car, since a car isitself an instrument of transportation and when activated becomes within the total possession and control of theoperator. Rattray v. Brown, 2003, 261 F.Supp.2d 149. Larceny 12

Where defendant first became involved day after theft of car, original perpetrators were not being pursued in actof carrying away loot, and removal of wheels and tires took place some distance from dealership from which carwas stolen, asportation ceased before defendant's involvement; thus, defendant could not be convicted of larcenybased on his taking tires and wheels from car. People v. Robinson, 1983, 60 N.Y.2d 982, 471 N.Y.S.2d 258, 459



N.E.2d 483. Larceny 17; Larceny 27

Defendant who entered automobile of another, positioned himself behind wheel, started engine, turned on lightsand was about to move the automobile was guilty of a completed larceny, even if automobile was not moved.People v. Alamo, 1974, 34 N.Y.2d 453, 358 N.Y.S.2d 375, 315 N.E.2d 446. Larceny 12

Where the accused put his hand into the coat pocket of the complainant, seized the pocketbook of the latter con-taining a large amount of money, and lifted it several inches from the bottom of the pocket, but was preventedfrom taking it completely out of the pocket, there was a sufficient severance of the property from the owner'spossession to constitute larceny. Harrison v. People, 1872, 50 N.Y. 518.

Evidence was sufficient to support finding that defendant stole vehicle, as required for conviction of second-de-gree robbery, although defendant was unable to actually drive away due to anti-theft device; according to victim,defendant approached her at gas station, pressed object against her back, ordered her to give him keys to vehicle,and later re-approached her to ask how to work alarm, and victim further testified that her cell phone jack, whichwas found in defendant's possession, was missing from vehicle and that she found cell phone in her vehiclewhich did not belong to her. People v. Zombo (4 Dept. 2006) 28 A.D.3d 1233, 813 N.Y.S.2d 624, leave to ap-peal denied 7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288, leave to appeal denied 7 N.Y.3d 797, 821N.Y.S.2d 827, 854 N.E.2d 1291. Robbery 24.10

Evidence of defendant's actions as a whole established that defendant exercised control over automobile, eventhough automobile did not actually move, thus satisfying asportation requirement for completed larceny; defend-ant surreptitiously entered car whose engine was running, released emergency brake and operated gearshiftlever, stepped on accelerator pedal even after complainant had jumped onto hood of car, and fled scene when an-other vehicle blocked car from moving. People v. Brenia (1 Dept. 2000) 277 A.D.2d 17, 715 N.Y.S.2d 54, leaveto appeal denied 96 N.Y.2d 732, 722 N.Y.S.2d 799, 745 N.E.2d 1022. Larceny 62(1)

Property need not be removed from owner's premises for defendant to gain dominion and control requisite tosatisfy larceny statute; a slight movement of property constitutes sufficient asportation. People v. Yusufi (3Dept. 1998) 247 A.D.2d 648, 669 N.Y.S.2d 66, appeal denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454.Larceny 17

Evidence that defendant removed tire rims from their location at gas station to back of his truck with intent tosell the rims was sufficient to establish taking requirement of third-degree grand larceny, despite evidence thatdefendant did not have opportunity to remove the rims from gas station property. People v. Geppner (3 Dept.1986) 122 A.D.2d 394, 505 N.Y.S.2d 208. Larceny 62(1)

14. ---- Commercial transactions, appropriation of property

A person who, with criminal intent, returns less than correct change on being handed a bill in payment for pur-chase is guilty of larceny. People v. Kirkup, 1958, 4 N.Y.2d 209, 173 N.Y.S.2d 574, 149 N.E.2d 866. See, also,Hildebrand v. People, 1874, 56 N.Y. 394. Larceny 12



Proof that officers of defendant, a corporation, had instructed its employees to resell coats held on deposit andthat when a coat was purchased and the deposit paid, instead of keeping the coat for the purchaser until the bal-ance was paid, the course of business was to resell the coat many times and deliver it to whomever first paid thefull purchase price, would establish larceny by the corporation, but where such proof is excluded and strickenout, even though erroneously and the charge of larceny is supported only by proof of a sale to complainant ondeposit and upon her paying the balance and demanding her coat, the attempted delivery to her of a coat that hadbeen sold to another, and there is no evidence that this was done by authority of an officer of the corporation,such proof is insufficient to sustain a conviction for larceny. People v. Canadian Fur Trappers' Corporation,1928, 248 N.Y. 159, 161 N.E. 455.

In view of newspaper route man's explanation that excess deliveries were only of newspapers lawfully deliveredto him but diverted by him from other dealers as part of innocent, good faith route delivery manipulation, Peopledid not establish prima facie case of larceny of newspapers, much less guilt beyond reasonable doubt. People v.Belvedere (2 Dept. 1975) 47 A.D.2d 861, 366 N.Y.S.2d 45. Larceny 55

Where defendant was employed as merchandise manager for manufacturer of textile fabrics, defendant sold hisemployer's goods at price less than market value and subsequently shared in profit achieved through resale ofgoods, defendant's conduct constituted larceny under definition that person steals property and commits larcenywhen, with intent to deprive another of property or to appropriate the same to himself or to third person, wrong-fully takes, obtains or withholds such property from owner thereof. People v. Silverman, 1980, 106 Misc.2d 468,434 N.Y.S.2d 319. Larceny 18

Larceny cannot be predicated on a sale to the state of bonds for sinking fund purposes, because a charge in ex-cess of the market price is made by the seller and agreed to by the state officer, and no number of reiterated oc-currences of a similar nature, standing by themselves, will make out a criminal intent. People v. Travis, 1921,116 Misc. 537, 190 N.Y.S. 754. Larceny 3(1)

15. ---- Misappropriation of property

Action of courier service, which had been given bank's money for “fine counting” with instructions to deliver itto Federal Reserve bank within 72 hours, in completing its task in approximately 24 hours and then depositingthe money in another bank to buy “repurchase agreements” which were then sold back in time to deliver themoney to the Federal Reserve bank within the 72-hour time frame, with the courier service retaining the interest,did not constitute criminal larceny. People v. Jennings, 1986, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d1079. Larceny 1

Charge of grand larceny in the third [now fourth] degree could not be sustained against assistant superintendentof apartment building on basis of failure to turn over September rent from certain tenant to apartment manage-ment, where such rent was in fact received by management, though it had been marked by defendant as paymentfor August rent. People v. Iskandar (2 Dept. 1980) 74 A.D.2d 880, 426 N.Y.S.2d 24. Embezzlement 11(1)

Evidence was sufficient to establish that defendant was guilty of conversion of property held in trust when he



deliberately misapplied funds deposited with him in escrow. People v. Gelo (2 Dept. 1969) 32 A.D.2d 661, 300N.Y.S.2d 792. Embezzlement 44(6)

The mere withholding of a deed was not, in itself, a crime but the crime consisted of misappropriating moneypaid on account of the purchase price and the withholding of a deed created a presumption of misappropriation.People v. Shatzkin (1 Dept. 1927) 221 A.D. 602, 224 N.Y.S. 526.

16. ---- Public money, appropriation of property

Evidence was sufficient to show that defendant, a pharmacy worker, wrongfully took money in excess of $3,000from State through its Medicaid program, with intent to appropriate that money for himself or a third person, asrequired to support conviction for third-degree grand larceny; defendant misled Medicaid as to the actual recipi-ent of drugs that were dispensed to undercover officer, and fraudulently billed Medicaid for $3,073.47, whichcaused State to reimburse pharmacy in that amount, and, as a result of defendant's fraudulent claims, pharmacyexercised dominion and control over money to which it was not entitled, and defendant's negotiations with of-ficer indicated his intent to appropriate the money to pharmacy. People v. Khan (1 Dept. 2011) 82 A.D.3d 44,916 N.Y.S.2d 28, leave to appeal granted 16 N.Y.3d 860, 923 N.Y.S.2d 422, 947 N.E.2d 1201, affirmed 18N.Y.3d 535, 942 N.Y.S.2d 399, 965 N.E.2d 901. Larceny 55

Conviction for grand larceny in third degree on basis of public assistance fraud was supported by evidenceshowing that defendant received overpayment of $6,862, which proof established was difference betweenamount of assistance defendant actually received and amount he would have been entitled to had he disclosedhis outside income, and that defendant received more than $3,000 in public assistance. People v. Starks (3 Dept.1997) 238 A.D.2d 621, 656 N.Y.S.2d 399, appeal denied 91 N.Y.2d 836, 667 N.Y.S.2d 690, 690 N.E.2d 499.False Pretenses 49(2)

Deputy town clerk's alleged receipt of tax payments in form of cash and his entry on assessment role of threemissing payments did not support inference of wrongful taking and would not support conviction for fourth-de-gree grand larceny of petit larceny; at least tow other people besides town clerk had access to cash drawer;amount of missing money exceeded total of payments made by taxpayers; although no entries were made in taxcollection record, there was no evidence as to who was to make entries; and although deputy clerk did not in-clude two payments on appropriate bank deposit slip, other deposit slip omitting one payment was completed bytown clerk. People v. English (3 Dept. 1988) 138 A.D.2d 831, 525 N.Y.S.2d 936. Larceny 41

As matter of law, funds from which defendant used money represented funds of the State, Office of MentalHealth, or psychiatric facility operating community store, and thus was subject for larceny despite contention ofdefendant that fund in question constituted constructive trust held by him for benefit of others and thus could notbe subject matter of larceny. People v. Munhall (3 Dept. 1983) 92 A.D.2d 1060, 461 N.Y.S.2d 566. Larceny

15(1)

The fraudulent conversion, by a vendor, of city sales tax money collected from purchasers, constitutes “larceny”.People v. Felber (1 Dept. 1942) 264 A.D. 181, 34 N.Y.S.2d 609. Embezzlement 11(1)



Where defendant admitted the receipt of $5,000, for taxes from the town tax collector but attributed the failureto account for same to inefficient bookkeeping and his own oversight in not including the sum in his report, hewas found guilty of larceny. People v. Randolph (2 Dept. 1910) 136 A.D. 661, 121 N.Y.S. 431.

Defendant's alleged misuse of electronic card permitting unlimited use of subway by selling rides to his fellowcustomers, and “swiping” them through turnstile after they made their payments to him deprived transit author-ity of money to be collected from customers, and thus fell within scope of larceny statute. People v. Zayas,2005, 8 Misc.3d 879, 797 N.Y.S.2d 897. Larceny 5

Indictment charging defendant with third-degree grand larceny for allegedly improperly seeking reimbursement,as state assemblyman, for travel expenses not actually incurred was valid even though no complainant appearedbefore grand jury asserting that he or she was victim of alleged theft; grafting such a requirement on larcenyprosecution when state was alleged victim was particularly inappropriate, given that government entity could“complain” only through a representative individual without a personal stake in loss alleged. People v. Norman,2004, 6 Misc.3d 317, 789 N.Y.S.2d 613. Indictment And Information 10.2(11)

Tax Law § 1132 providing that every person required to collect sales tax shall collect tax from the customerwhile collecting price, amusement charge or rent to which it applies creates a trust of sales tax monies, in thatduty to collect and remit sales taxes is imposed upon vendor by Tax Law § 1132, he accepts that duty automatic-ally by establishing and operating a legitimate business, and vendor is not free to use it for his own purposes but,rather, monies belong to the state as the beneficiary, and thus when a vendor fraudulently converts sales taxmoney to his own use and fails to remit payment to the state, he is guilty of larceny under this section. People v.Valenza, 1981, 108 Misc.2d 86, 436 N.Y.S.2d 937, affirmed 90 A.D.2d 466, 454 N.Y.S.2d 1018, reversed 60N.Y.2d 363, 469 N.Y.S.2d 642, 457 N.E.2d 748. Embezzlement 11(1); Taxation 3707; Taxation3712

17. ---- Negligence, appropriation of property

Where highway construction contractor and engineering firm engaged by the state to supervise constructionwork were charged with larceny, insofar as engineers were concerned, neglect of duty was not equivalent totheft nor was laxity equivalent to larceny. People v. Yonkers Contracting Co., 1966, 17 N.Y.2d 322, 270N.Y.S.2d 745, 217 N.E.2d 829. Larceny 1

18. ---- Shoplifting, appropriation of property

A shoplifter need not leave the store to be guilty of larceny, as long as that person exercised control wholly in-consistent with the owner's continued rights, which control may be demonstrated by several factors, includingconcealment of the goods under clothing or in a container, and possession of a known shoplifting device actuallyused to conceal merchandise, such as a specially designed outer garment or a false bottomed carrying case.People v. Olivo, 1981, 52 N.Y.2d 309, 438 N.Y.S.2d 242, 420 N.E.2d 40, reargument denied 53 N.Y.2d 797,439 N.Y.S.2d 1030, 422 N.E.2d 596. Larceny 12



Cash register attendant's substantially unimpeached testimony that he saw defendant put 40 cent package of gumfrom candy rack into her purse supported finding that defendant had committed a larceny when she shopliftedthe gum. People v. Walden (1 Dept. 1986) 120 A.D.2d 362, 502 N.Y.S.2d 14. Larceny 55

Evidence that defendant placed paper towels and other items in a brown paper bag and then placed six or sevenham steaks under his belt and walked by supermarket cash registers without paying was sufficient to permit trierof fact to conclude that defendant had exercised sufficient control over the goods to constitute a completed lar-ceny and sufficed to present a prima facie case; fact that defendant had not left the store was wholly irrelevant.People v. Britto, 1978, 93 Misc.2d 151, 402 N.Y.S.2d 546. Larceny 68(1)

Until suspected shoplifter has left store, such person has not deprived the lawful owner of the property, and evenif the person along the way may have thought about stealing or depriving the store of the property, until he hasactually deprived the store of the property the crime has not been committed. People v. Parrett, 1977, 90 Misc.2d541, 394 N.Y.S.2d 809. Larceny 21

19. ---- Withholding of property, appropriation of property

Evidence was sufficient to support conviction of two counts of grand larceny, premised on defendant's entry intologging agreements with landowners; landowners testified that they entered into written contracts with defend-ant to log their land, that defendant thereafter logged the land but failed to pay them agreed upon proceeds, des-pite persistent efforts to contact him and obtain payment, and timber which was harvested from each propertywas valued at $16,491 and $31,000. People v. Houghtaling (3 Dept. 2005) 14 A.D.3d 879, 787 N.Y.S.2d 733,leave to appeal denied 4 N.Y.3d 831, 796 N.Y.S.2d 587, 829 N.E.2d 680. Larceny 65

A garageman who claimed to have lien on automobile for towage, storage, and repairs and refused to surrenderpossession until his bill was paid could not be convicted of unlawfully withholding the automobile, since thematter was entirely civil. People, on Complaint of Nanos, v. Kahn, 1938, 7 N.Y.S.2d 165. Larceny 1

20. ---- Fraud, appropriation of property

Evidence, including defendant's admission to her employers that she altered documents pertaining to relocationexpenses she was accused of having obtained under false pretenses, was sufficient to support convictions forgrand larceny in the second degree and criminal possession of a forged instrument in the second degree. Peoplev. Allen-Collins (1 Dept. 1994) 207 A.D.2d 725, 616 N.Y.S.2d 597, appeal denied 84 N.Y.2d 1008, 622N.Y.S.2d 920, 647 N.E.2d 126. Criminal Law 413.94(7)

In prosecution for grand larceny in which the People contended that defendant stole money from insurance com-pany and made false entries in their records when he issued 25 sight drafts to payees who did not have validclaims, there was lack of proof that defendant, with intent to deprive another of property or appropriate the sameto himself or a third party, wrongfully took, obtained or withheld insurance company's money through any stat-utory definition as to 18 of the counts. People v. Klein (1 Dept. 1982) 91 A.D.2d 542, 457 N.Y.S.2d 16. Larceny

63



21. Lost property

There was no reasonable view of the evidence that would support finding that defendant did not steal walletfrom victim's person, but instead only committed petit larceny by acquiring lost property, and thus defendantwas not entitled to have petit larceny submitted as lesser included offense of grand larceny. People v. Washing-ton (1 Dept. 2005) 21 A.D.3d 253, 799 N.Y.S.2d 217, leave to appeal denied 5 N.Y.3d 834, 804 N.Y.S.2d 48,837 N.E.2d 747, certiorari denied 126 S.Ct. 1047, 546 U.S. 1104, 163 L.Ed.2d 878, habeas corpus granted 507F.Supp.2d 342, vacated 601 F.3d 163, certiorari denied 131 S.Ct. 342, 178 L.Ed.2d 254, vacated in part on re-hearing en banc 624 F.3d 69, certiorari denied 131 S.Ct. 1691, 179 L.Ed.2d 646, certiorari denied 131 S.Ct.1693, 179 L.Ed.2d 646. Larceny 79

One who seeks to return lost property in return for a reward which he has solicited has not made “reasonablemeasures” to return lost property and has intended, by seeking a reward, to dispose of the property for his ownbenefit and thereby commits larceny and criminal possession of stolen property. People v. Dadon, 1996, 167Misc.2d 628, 640 N.Y.S.2d 425. Larceny 10; Receiving Stolen Goods 2

Information charging fifth-degree possession of stolen property stated prima facie case of defendant's knowledgeof stolen nature of property, where information alleged that defendant split up items in bag and discarded papers,including pay stub which identified owner of property, and that defendant and codefendant had possession of$563 nearly equal to $572.69 listed on the discarded stub. People v. Francia, 1992, 154 Misc.2d 211, 585N.Y.S.2d 157. Receiving Stolen Goods 7(2)

Former Penal Law 1909, § 1300 exposing finder of lost goods to possible prosecution for certain violations is inderogation of common law and must be strictly construed. Reif v. Insurance Co. of North America (2 Dept.1961) 33 Misc.2d 961, 223 N.Y.S.2d 101. Larceny 10

The custom of depositing lost property with the property clerk of the police department of the City of New Yorkfor the purpose of advertising for the true owner, could not be invoked to take the place of former Penal Law1909, § 1300 which does not require that lost articles be deposited with the property clerk. Garramone v. Sim-mons, 1941, 177 Misc. 330, 30 N.Y.S.2d 465. Abandoned And Lost Property 10

The fact that an experienced Pullman car porter, when presenting for redemption railroad tickets recently stolen,and subsequently, at the police station, refused to explain his possession, but finally admitted that he receivedthem from a janitress in the ticket office, who claimed that she had found them, was sufficient to charge himwith notice of character or goods. Mills v. Erie R. Co., 1908, 63 Misc. 278, 113 N.Y.S. 641. Malicious Prosecu-tion 18(3)

A conviction of several defendants for a violation of former Penal Law 1909, § 1300 will not be sustained whereno evidence is shown to have been offered that the finding of the lost property was under circumstances whichwould give the defendants knowledge or means of inquiry as to the true owners. People v. Seaton, 1891, 60 Hun584, 39 N.Y.St.Rep. 483, 15 N.Y.S. 270.



The finder of lost property acquires a property right therein as against everyone but the true owner, but wherethe finder has knowledge or means of inquiry as to the true owner he must make every reasonable effort to findthe owner; even where knowledge or means of inquiry does not exist, he should make some effort to locate theowner. 1934 Op.Atty.Gen. 101.

22. Bad checks

Under New York law, issuance of a “bad check” is only larceny if the check was issued in connection with thetaking, obtaining, or withholding of property. In re MacArthur, 2000, 247 B.R. 613, affirmed 2001 WL34545897. Larceny 1

Where one obtains property by means of a check which he represents to be certified and which is apparently cer-tified but is in reality not certified and worthless, he is guilty of larceny. Underwood v. Globe Indemnity Co.,1927, 245 N.Y. 111, 156 N.E. 632.

A person who obtains money by means of a check purporting to be signed by a third person, is guilty of a viola-tion of former Penal Law 1909, § 1293 where it appears that at the time of giving it he knew that the check hadnot been signed by such person or by his authority. People v. Pindar, 1914, 210 N.Y. 191, 104 N.E. 133, reargu-ment denied 210 N.Y. 621, 104 N.E. 1137, reargument denied 211 N.Y. 610, 106 N.E. 1038.

A person who obtains money or property on a check signed by himself knowing at the time of its presentationthat he has insufficient funds in the bank on which it is drawn violates former Penal Law 1909, § 1293. Smith v.People, 1872, 47 N.Y. 303. See, also, People v. Huggins, 1906, 110 A.D. 613, 97 N.Y.S. 187; People v. Dilcher,1902, 38 Misc. 89, 77 N.Y.S. 108; Sieling v. Clark, 1896, 18 Misc. 464, 41 N.Y.S. 982.

Evidence supported finding of criminal intent in prosecution for grand larceny in fourth degree, committed byissuing bad check, even though defendant told complainants that when he wrote check he was “a little short atthe time,” that they “should hold onto the check for a day or two,” but that check would then be good; defendantwrote check on bank account that had been closed approximately two and one-half years earlier. People v.Chrysler (4 Dept. 1996) 225 A.D.2d 1058, 639 N.Y.S.2d 213, appeal denied 88 N.Y.2d 934, 647 N.Y.S.2d 168,670 N.E.2d 452. False Pretenses 49(2)

Evidence was insufficient to convict defendant of grand larceny in the third degree premised upon a larceny byissuing a bad check; defendant, by issuing bad check, did not discharge obligation to repay money he had previ-ously borrowed; thus, issuance of check in payment of outstanding debt was not larceny as it could not be char-acterized as a wrongful taking or holding of property. People v. Campobello (4 Dept. 1989) 154 A.D.2d 911,156 A.D.2d 1033, 546 N.Y.S.2d 62. Larceny 12

In prosecution for grand larceny on theory of issuance of bad checks, evidence of issuance of ten checks whichwere returned for insufficient funds was admissible to establish defendant's intent and knowledge that accounton which he drew the dishonored checks did not contain sufficient funds to cover them. People v. Caruso (2Dept. 1987) 135 A.D.2d 550, 521 N.Y.S.2d 771, appeal denied 71 N.Y.2d 893, 527 N.Y.S.2d 1003, 523 N.E.2d



310. Criminal Law 371.43; Criminal Law 371.69

Circumstantial evidence in defendant's prosecution for second-degree grand larceny by bad check establishedbeyond a reasonable doubt defendant's knowledge of insufficient funds at time of utterance, where approxim-ately 1,000 dishonored checks were returned to state automobile insurance plan by insurance carriers in ninemonths after the certified check requirement was lifted, and where representatives of three insurance carrierstestified to amounts unrecovered by reason of dishonored checks. People v. Liebowitz (2 Dept. 1985) 112A.D.2d 383, 491 N.Y.S.2d 839, appeal denied 65 N.Y.2d 928, 493 N.Y.S.2d 1047, 483 N.E.2d 140. False Pre-tenses 49(4)

Issuing postdated check on underlying obligation to repay down payment on real estate upon cancellation of pur-chase agreement did not constitute larceny even though check was returned for insufficient funds since issuanceof check did not discharge obligation but only suspended it. People v. Gasbara (3 Dept. 1983) 95 A.D.2d 333,468 N.Y.S.2d 54. False Pretenses 11

Defendant who, knowing of insufficiency of funds against which check was drawn, gave check in payment ofpreexisting indebtedness was guilty of misdemeanor of issuing a fraudulent check, but was not guilty of larcenyby false pretenses by means of check. People v. Miller (3 Dept. 1968) 29 A.D.2d 921, 286 N.Y.S.2d 448. FalsePretenses 6

In order to constitute a violation of former Penal Law 1909, § 1293 by obtaining money by a fraudulent check, ithad to be shown that the defendant “willfully, with intent to defraud, by color or aid” of the check, obtained themoney from the complainant knowing “that the drawer or maker” of the check was “not entitled to draw on thedrawee for the sum specified therein”, and it was necessary that the prosecution show either a false representa-tion and criminal intent or knowledge on the part of the defendant that the check was invalid, or that the draweror maker had no funds on deposit with the drawee sufficient to meet the same. People v. Ghiggeri (1 Dept. 1910)138 A.D. 807, 123 N.Y.S. 489.

A person could not be convicted of a violation of former Penal Law 1909, § 1293 in giving a worthless checkwhere it was shown that after the check was dishonored the complainant's agent negotiated with the defendant atransfer of real estate to secure the sum due and thus treated the transaction as a simple indebtedness. People v.Lipp (1 Dept. 1906) 111 A.D. 504, 98 N.Y.S. 86.

To sustain a conviction for grand larceny for obtaining money by color or aid of a fraudulent representation, inpassing a bank check with intent to defraud, the false representation must have some bearing upon the questionas to whether the check will be paid, or relate to the responsibility of the drawer or payee. People v. Whiteman(1 Dept. 1902) 72 A.D. 90, 76 N.Y.S. 211. False Pretenses 7(1)

To establish offense of issuing a bad check, prosecution must be able to plead and prove an intent by defendantto utter worthless check at time it is uttered, not by mere happenstance of subsequent insufficient funds, or evensubsequent closing of account; in latter situations, given defendant may remain civilly liable on check, absent



good defenses to underlying debt, but such person does not incur criminal liability. People v. Hankin, 1997, 175Misc.2d 83, 667 N.Y.S.2d 890. False Pretenses 6; False Pretenses 38

Where petitioner was indicted for obtaining property by means of a check knowing that he did not have an ac-count to meet the check, the fact that check did not have the payee's endorsement on the back would not invalid-ate a conviction for larceny. People v. Jester, 1951, 102 N.Y.S.2d 554. False Pretenses 22

23. Bank accounts

One cannot commit larceny of funds from a joint bank account in which he or she is one of the lawful accountowners. People v. Gbohou, 2000, 186 Misc.2d 324, 718 N.Y.S.2d 791. Larceny 7

Indictment charging defendant with grand larceny and criminal possession of stolen property was based on leg-ally sufficient evidence before the grand jury, which showed that, during period of charged thefts, defendant'shome health care patients were mentally incapable of consenting to transfers of their monies allegedly taken orobtained by defendant from patients' individual bank accounts and that defendant was aware of patients' dimin-ished capacity. People v. Gbohou, 2000, 186 Misc.2d 324, 718 N.Y.S.2d 791. Indictment And Information10.2(8); Indictment And Information 10.2(11)

Larceny, even by wrongful creation of a joint account, may be committed by any means set forth in larceny stat-ute. People v. Gbohou, 2000, 186 Misc.2d 324, 718 N.Y.S.2d 791. Larceny 12

23.5. Credit cards

Contrary to defendant's contention that he “found” two electronic transfer cards at different times and in differ-ent places, evidence supported defendant's criminal conviction of possession of stolen property; there was cir-cumstantial evidence that the cards had been stolen either by common-law trespassory taking or by acquiringlost property, and evidence supported defendant's knowledge that cards were stolen, since he failed to returncards to owners. People v. Starks (1 Dept. 2010) 70 A.D.3d 585, 896 N.Y.S.2d 319, leave to appeal denied 15N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229. Receiving Stolen Goods 8(3); Receiving Stolen Goods

8(4)

24. Trespassory taking

Where larceny is committed by trespassory taking, thief's responsibility for crime is not diminished because hisact of carrying away loot, asportation, is frustrated at early stage. People v. Robinson, 1983, 60 N.Y.2d 982, 471N.Y.S.2d 258, 459 N.E.2d 483. Larceny 17

The felonious taking by trespass and carrying away of the property of another, without the consent of the latterand with the felonious intent permanently to deprive the owner of his property and to convert it to the taker'sown use, or to the use of another than the lawful owner, is larceny. Thorne v. Turke, 1883, 94 N.Y. 90. See, also,People v. Henry, 1908, 127 A.D. 489, 111 N.Y.S. 1005; Marshall v. Buffalo, 1900, 50 A.D. 149, 64 N.Y.S. 411;



Shipman v. Learn, 1895, 92 Hun 558, 36 N.Y.S. 969; People v. Hughes, 1895, 91 Hun 354, 36 N.Y.S. 493;People v. Bosworth, 1892, 64 Hun 72, 19 N.Y.S. 114.

An essential element of “Common-law larceny” is felonious taking by trespass and carrying away of another'sproperty without his or her consent. People v. Page, 1944, 182 Misc. 253, 49 N.Y.S.2d 790. Larceny 12

25. Larceny by trick

There could be no larceny by trick resulting from act of customer in signing of receipt which recited that cus-tomer was holding securities solely to inspect and verify them when customer intended to deliver them up forsale before payment where broker by delivering certificates to its customer gave up its lien along with posses-sion of securities for whose payment customer had given uncollectible checks. Sutro Bros. & Co. v. IndemnityIns. Co. of North America, 1967, 264 F.Supp. 273, affirmed 386 F.2d 798. Larceny 14(1)

If wrongdoer obtains possession of an article, without obtaining title, by false representation as to his purpose orintention, he is guilty of common-law and statutory offense of larceny by trick and device. Giannetto v. GeneralExchange Ins. Corp. (4 Dept. 1960) 10 A.D.2d 442, 200 N.Y.S.2d 238. Larceny 14(1)

Evidence under which jury could find that complaining witness did not intend that money which he gave to de-fendant be used for any purpose except a purchase of certain stock warranted conviction for larceny under acommon-law count, the other elements of the crime being present, on ground that the money was obtained bytrick and device as distinguished from false pretenses. People v. Stiller (1 Dept. 1938) 255 A.D. 480, 7 N.Y.S.2d865, affirmed 280 N.Y. 519, 19 N.E.2d 923. Larceny 62(2)

Defendant's alleged conduct in removing jewelry and watches from elderly widow's home, on false premise thatappraisal would be made and that property would be purchased or returned, was criminal in nature and amoun-ted to attack upon fundamental public interest, and therefore widow could recover punitive damages on her con-version claim without showing pattern of similar conduct by defendant toward others; defendant's conductamounted to larceny by trick at common law. Muhlfield v. Bak, 1997, 174 Misc.2d 396, 664 N.Y.S.2d 427. Con-version And Civil Theft 221

Theory of “larceny by trick,” includes use of falsely expressed purpose or intent to induce owner to part withpossession, but not title to, his property. People v. Kaminsky, 1985, 127 Misc.2d 497, 486 N.Y.S.2d 814. Lar-ceny 14(1)

Travelers checks given by purchaser to flimflam man were “stolen” and purchaser was entitled to refund fromissuing bank of amount of checks in view of this section defining theft to include larceny by trick and obtainingproperty under false pretenses and by false promise. Fischer v. Citicorp Services, Inc., 1980, 107 Misc.2d 307,433 N.Y.S.2d 966. Banks And Banking 189

26. Embezzlement--In general



Under former Penal Law 1909, § 1290 there is a distinction between embezzlement and commercial bribes, onlythe former requiring the actual taking or withholding of money or property from the true owner. U.S. v.Bruswitz, C.A.2 (N.Y.)1955, 219 F.2d 59, certiorari denied 75 S.Ct. 600, 349 U.S. 913, 99 L.Ed. 1247. Embez-zlement 1

For purpose of car owner's contention that third person's possession and use of his car was illegal, thereby en-titling him to protection from forfeiture following seizure of the car in connection with drug transaction, loan ofcar to third person by person in whose care owner had left the car was not “larceny by misappropriation” or“larceny by embezzlement” where owner did not impose and caretaker did not comprehend restrictions aboutpossible use of the car by others. U.S. v. One Mercedes-Benz 380 SEL VIN. No. WDBCA 33A1BB10331, 1984,604 F.Supp. 1307, affirmed 762 F.2d 991. Controlled Substances 173

Defendants, an incorporated restaurant business and its sole owner, could not be subjected to a criminal prosecu-tion for larceny by embezzlement for failing to remit sales taxes due to the state; rather, defendants were subjectonly to civil penalties. People v. Valenza, 1983, 60 N.Y.2d 363, 469 N.Y.S.2d 642, 457 N.E.2d 748. Embezzle-ment 10

Although nursing home residents had contractual right to receive medicare refunds from operator of nursinghome equal to full amount they had previously paid to him, minus any coinsurance fees, money from which op-erator was required to make those payments belonged to him rather than to residents and operator's failure tomake full refunds did not constitute larceny by embezzlement. People v. Yannett, 1980, 49 N.Y.2d 296, 425N.Y.S.2d 300, 401 N.E.2d 410. Embezzlement 8

Where the treasurer of a corporation deposited corporate funds in his private bank, where they were mingledwith funds of other depositors, and used the entire amount as if it had been his own, until his bankruptcy resultedin a large loss to the corporation it constitutes embezzlement within the meaning of a surety bond securingagainst any act of fraud or dishonesty in the discharge of his duties amounting to larceny or embezzlementthough in a criminal prosecution a jury might not unreasonably have absolved him of felonious intent. GeneseeWesleyan Seminary v. U.S. Fidelity & Guaranty Co., 1928, 247 N.Y. 52, 159 N.E. 720.

Where a county auditor corruptly countersigns a warrant for a sum of money payable to a contractor on his con-tract with the county, whereby payment of the money is procured from the county treasurer, when to the know-ledge of the auditor the contract had already been overpaid, he is guilty of embezzlement. People v. Neff, 1908,191 N.Y. 210, 83 N.E. 970.

Evidence that there was no other insurance coverage less expensive than policies defendant procured, even withovercharges, was not relevant to issue of whether defendant misrepresented how much was owed insurance com-panies and whether he charged more than he was entitled to in trial for scheme to defraud in first degree andgrand larceny in third degree due to scheme under which defendant caused an insurance brokerage firm to over-charge insureds for premiums and to withhold from insureds certain portions of return premiums received frominsurers that should have been refunded. People v. Keyes (1 Dept. 2002) 298 A.D.2d 234, 748 N.Y.S.2d 557,leave to appeal denied 99 N.Y.2d 583, 755 N.Y.S.2d 719, 785 N.E.2d 741. Insurance 3656; Larceny



43

Sufficient evidence existed to support defendant's conviction of larceny by embezzlement due to scheme underwhich he caused an insurance brokerage firm to overcharge insureds for premiums and to withhold from in-sureds certain portions of return premiums received from insurers that should have been refunded, including de-fendant's numerous and often conflicting rationales for his billing practices, that invoices implicitly representedthat his commissions and fees were calculated in accordance with terms of policies, and that balance representedpremium charged by insurer. People v. Keyes (1 Dept. 2002) 298 A.D.2d 234, 748 N.Y.S.2d 557, leave to ap-peal denied 99 N.Y.2d 583, 755 N.Y.S.2d 719, 785 N.E.2d 741. Embezzlement 44(1)

Theory of prosecution's larceny case against employer which allegedly failed to remit sales taxes and/or employ-ees' personal withholding taxes collected on behalf of State of New York was apparently larceny by embezzle-ment, and conversion of property belonging to another which had been entrusted to embezzler to hold on behalfof the owner would be required to be shown, as essential element. People v. Lyon (2 Dept. 1981) 82 A.D.2d 516,442 N.Y.S.2d 538. Embezzlement 35

There is a distinction between refusal to pay valid debt and crime of larceny by embezzlement. People v. Duda(2 Dept. 1980) 79 A.D.2d 712, 434 N.Y.S.2d 255. Embezzlement 1

“Lawful receipt” of another's property, an element of larcenous embezzlement, was not logically opposed to in-surance fraud's wrongful taking and, hence, did not preclude conviction for grand larceny by embezzlement, inaddition to conviction for insurance fraud in first degree, where “receipt” referred to obtaining lawful temporarypossession of settlement proceeds while “taking” entailed permanently appropriating proceeds. People v.Kramer, 1986, 132 Misc.2d 753, 505 N.Y.S.2d 769, affirmed as modified on other grounds 132 A.D.2d 708, 518N.Y.S.2d 189, affirmed 72 N.Y.2d 1003, 534 N.Y.S.2d 912, 531 N.E.2d 633. Criminal Law 878(4)

Conversion is an essential element of larceny by embezzlement. People v. Calandra, 1983, 117 Misc.2d 972, 459N.Y.S.2d 549. Embezzlement 11(1)

Defendant's conduct in selling goods of his employer to jobbers at prices below their actual market value and be-low prices charged to other accounts where jobbers would then resell goods to third party at higher price andshare profit with defendant constituted larceny by embezzlement since jury could find that property embezzledwas difference between full market value of goods sold by defendant to jobbers and value actually received byemployer. People v. Silverman, 1980, 106 Misc.2d 468, 434 N.Y.S.2d 319. Embezzlement 11(1)

Larceny is not established by a complaint alleging that the complainant, having money on deposit with the de-fendant, a stockbroker, to be used as a margin for speculation, received notice from the broker that he had soldfor him certain shares of stock at certain figures, that no transactions were to be made by the broker for the com-plainant except upon his orders, that he gave no orders to sell, that the stocks were not in fact sold, and that thebroker reported the sale in order to show a loss of margin and appropriate to his own use the complainant's de-posit as in such case, the fact that the broker made misstatements as to sales does not constitute a crime, for the



complainant parted with nothing on the faith thereof, did not alter his position, and was not thereby deceived tohis pecuniary injury. People v. Paine, 1901, 35 Misc. 763, 72 N.Y.S. 3.

27. ---- Bailments, embezzlement

Evidence that security salesman had been intrusted by a client with money to invest and reinvest, that he pur-chased stock in his own corporation for the client but took the certificate in his own name, that he later sur-rendered $600 of the stock but deposited the money therefrom in his own bank account for his personal use didnot merely establish existence of a “debtor-creditor relationship” but sustained conviction of grand larceny, onground that salesman had applied to his own use funds in excess of $500 belonging to client, and held by him asher bailee or agent. People v. Robinson, 1940, 284 N.Y. 75, 29 N.E.2d 475. Embezzlement 44(5)

Bailee, agent or trustee who possesses funds collected from customers and converts such funds to his own usecompletes a larceny by embezzlement. People v. Horney (3 Dept. 1984) 103 A.D.2d 891, 478 N.Y.S.2d 184.Embezzlement 16; Embezzlement 17; Embezzlement 18

Embezzlement, which is the intentional misappropriation of money or property of another by one who has pos-session as a bailee, agent or custodian of the owner, is form of larceny. People v. Chesler (4 Dept. 1979) 71A.D.2d 792, 418 N.Y.S.2d 962, affirmed 50 N.Y.2d 203, 428 N.Y.S.2d 639, 406 N.E.2d 455. Embezzlement

1

In order to sustain a charge of larceny by bailee it is necessary for the People to establish that the defendant mis-appropriated property belonging to the complainant, of which he had possession as complainant's agent or trust-ee. People v. Gerety (1 Dept. 1934) 242 A.D. 5, 272 N.Y.S. 861.

A bailee to whom bonds were delivered accompanied by an option to pay the face value thereof or return on de-mand, who appropriated them after a demand for their return was guilty of grand larceny, first degree. People v.Beale (4 Dept. 1933) 239 A.D. 261, 267 N.Y.S. 575, affirmed 264 N.Y. 451, 191 N.E. 509, certiorari denied 54S.Ct. 717, 292 U.S. 633, 78 L.Ed. 1486, reargument denied 266 N.Y. 450, 195 N.E. 149.

For purpose of establishing larceny by embezzlement, existence of bailments was proved by written consign-ment agreements or by memoranda of receipt of property and testimony as to accompanying oral agreements,and conversion with criminal intent, inconsistent with terms of bailments, was established by failure to remitproceeds of sale or return consigned property together with evidence of contemporaneous misrepresentationswhen property was received and subsequent fraudulent and extortionate behavior. People v. Kaminsky, 1985,127 Misc.2d 497, 486 N.Y.S.2d 814. Embezzlement 44(1)

A garage owner who stole and converted a car to his own use, which had been placed with him for sale, is guiltyof larceny under former Penal Law 1909, § 1290. Ludwig v. Pacific Fire Ins. Co. of New York, 1924, 123 Misc.189, 204 N.Y.S. 465.



28. ---- Partnerships, embezzlement

General partner in limited partnership cannot be found guilty of larceny for misappropriating partnership funds.People v. Zinke, 1990, 76 N.Y.2d 8, 556 N.Y.S.2d 11, 555 N.E.2d 263. Larceny 7

General partner was accountable under criminal law for any embezzlement from limited partnership; generalpartner was not insulated by common-law rule, applicable to general partnerships, by virtue of which partnercould not be found guilty of embezzling partnership property. People v. Zinke, 1987, 137 Misc.2d 463, 520N.Y.S.2d 703, affirmed as modified 147 A.D.2d 106, 541 N.Y.S.2d 986, appeal denied 74 N.Y.2d 749, 545N.Y.S.2d 124, 543 N.E.2d 767, appeal granted 74 N.Y.2d 822, 546 N.Y.S.2d 580, 545 N.E.2d 894, stay contin-ued 75 N.Y.2d 764, 551 N.Y.S.2d 904, 551 N.E.2d 105, reversed 76 N.Y.2d 8, 556 N.Y.S.2d 11, 555 N.E.2d263. Larceny 7

29. ---- Trustee or fiduciary relationship, embezzlement

To make out a prima facie case of embezzlement the government of India, seeking extradition of petitioner forembezzling from naval prize fund, was not required to establish that some bona fide claimant was denied hisright to share in the fund; it sufficed that the respondent established that petitioner was administrator of the fundwith joint authority to withdraw monies therefrom, that he did so on numerous occasions and that shortly follow-ing many of those withdrawals he deposited closely equivalent sums in his personal bank account. Jhirad v. Fer-randina, C.A.2 (N.Y.)1976, 536 F.2d 478, certiorari denied 97 S.Ct. 97, 429 U.S. 833, 50 L.Ed.2d 98, rehearingdenied 97 S.Ct. 511, 429 U.S. 988, 50 L.Ed.2d 600. Extradition And Detainers 14(2)

Essence of crime of larceny by embezzlement is a conversion by embezzler of property belonging to anotherwhich has been entrusted to embezzler to hold on behalf of the owner. People v. Valenza, 1983, 60 N.Y.2d 363,469 N.Y.S.2d 642, 457 N.E.2d 748. Embezzlement 11(1)

Fact that proceeds of settlement had been deposited in attorney's account did not make them trust funds, eventhough there was an intermediate order providing that a predecessor attorney was entitled to a certain portion ofthose funds, and did not make those funds subject to a larcenous taking when the special account was depleted.People v. Keeffe, 1980, 50 N.Y.2d 149, 428 N.Y.S.2d 446, 405 N.E.2d 1012. Embezzlement 11(1)

A document acknowledging by defendant the receipt of money from another to be applied toward the acquisitionof corporate stock did not under the testimony evidence that defendant occupied a position of trust so as to au-thorize conviction of defendant for grand larceny by embezzlement when he failed to deliver the stock but estab-lished that a purchase and sale was contemplated. People v. Wrieden, 1949, 299 N.Y. 425, 87 N.E.2d 440. Em-bezzlement 10

A defendant, who, acting as executor of the last will and testament of a decedent and having in his possessioncertain moneys belonging to the estate, feloniously withholds the same and appropriates it to his own use, isguilty of a violation of former Penal Law 1909, § 1290 [now this section]. People v. Gibson, 1916, 218 N.Y. 70,112 N.E. 730, reargument denied 218 N.Y. 719, 113 N.E. 1063. Embezzlement 26



Where a parent has a life interest under a will in a certain sum of money with a remainder therein to his children,it is not larceny for the executor of the decedent to advance to the parent a portion of the money. Moss v. Cohen,1899, 158 N.Y. 240, 53 N.E. 8.

A person intrusted with personal property who, pursuant to instructions from the owner thereof, obtains a loanon it, cannot be convicted of larceny of the property because he fails to account for the proceeds of the loan.People v. Cruger, 1886, 102 N.Y. 510, 7 N.E. 555.

Viable, statutory trust relationship was created by Tax Law § 674, and larceny indictment will lie to redress al-legedly wrongful obtaining or withholding of personal income and sales tax revenues belonging to the state.People v. Lyon (2 Dept. 1981) 82 A.D.2d 516, 442 N.Y.S.2d 538. Larceny 1

Evidence required reversal of conviction on ground that attorney, who accepted from client a sum of money withwhich to effect a restitution, in an attempt to prevail upon insurance company not to pass a charge against clientof falsely reporting the loss of an automobile, had retained the money as a portion of his fee in accordance withclient's instructions after original attempt at restitution had failed, and that court's subsequent approval of offerof restitution was without attorney's knowledge. People v. Reiburn (1 Dept. 1938) 253 A.D. 603, 3 N.Y.S.2d 302. Larceny 62(2)

A trustee who withholds monies held in trust commits the crime of larceny by embezzlement. People v. Valenza,1981, 108 Misc.2d 86, 436 N.Y.S.2d 937, affirmed 90 A.D.2d 466, 454 N.Y.S.2d 1018, reversed 60 N.Y.2d 363,469 N.Y.S.2d 642, 457 N.E.2d 748. Embezzlement 11(1)

Evidence that secretary of corporate landlord participated in retaining security deposited by tenant under lease,to satisfy amount allegedly due under oral agreement collateral to lease, established prima facie case of embez-zlement by trustee against such secretary. People ex rel. Belleci v. Klinger, 1937, 164 Misc. 530, 300 N.Y.S.408. Embezzlement 44(5)

A person who fails to return a wager which he holds as a stakeholder, may be guilty of either common-law lar-ceny or embezzlement, and accordingly, where the complainant bet on a prizefight for which the defendant heldthe stakes, it is no bar to a prosecution for the illegal taking of the stakes since illegality of purpose in the courseof which property is stolen is, under former Penal Law 1909, § 1290 no bar to a prosecution for larceny. People,on Complaint of Sheinberg, v. Steurnthal, 1935, 154 Misc. 130, 276 N.Y.S. 689.

Where an insurance broker is under a fiduciary obligation to turn over premium collections to the insurer, theconversion of such moneys to his own use would constitute the crime of larceny. 1954, Op.Atty.Gen. 188.

30. False pretenses--In general

Larceny by false pretenses requires false statement about past or presently existing fact. People v. Norman,1995, 85 N.Y.2d 609, 627 N.Y.S.2d 302, 650 N.E.2d 1303, on remand 217 A.D.2d 902, 629 N.Y.S.2d 920.



False Pretenses 7(5)

Larceny by false pretenses, where the wrongdoer induces the owner to part with title by means of a false repres-entation of an external fact, was not a crime at common law, and even after enactment of this section it wassettled that the wrongdoer's misrepresentation must relate to a past or present fact, not a statement of future in-tention. People v. Churchill, 1979, 47 N.Y.2d 151, 417 N.Y.S.2d 221, 390 N.E.2d 1146. See, also, Giannetto v.General Exchange Ins. Corp., 1960, 10 A.D.2d 442, 200 N.Y.S.2d 238. False Pretenses 7(5)

Evidence was insufficient to support defendant's theft conviction for stealing, by false pretenses, money directlyfrom a trust beneficiary, where the only representations made to the beneficiary were false promises concerningthe future intentions of the defendant and his accomplices with respect to the money. People v. Avino (4 Dept.2006) 34 A.D.3d 1251, 826 N.Y.S.2d 860. False Pretenses 7(5)

Elements of grand larceny in third degree by false pretenses are: (1) intent to deprive owner of property, (2)making of false representation, (3) knowledge of falsity, (4) obtaining property of another, and (5) that ownerwas induced by representation to give up property. Norman v. Hynes (2 Dept. 2005) 20 A.D.3d 125, 799N.Y.S.2d 222, leave to appeal denied 6 N.Y.3d 706, 812 N.Y.S.2d 35, 845 N.E.2d 467. False Pretenses20.5

Individual defendants' conduct satisfied common-law theory of larceny by false pretenses in connection withcreation of fraudulent financial plans; each investor in corporate defendant was provided with virtually identicalinvestment portfolio, despite individual defendants' representation that their experts formulated individualizedplan for each investor, and defendants represented that corporation's fee was calculated according to complexityof financial plan chosen, but plans were of equal complexity and sales associates were given discretion to chargewhatever they “thought [they] could get away with.” People v. Sala (3 Dept. 1999) 258 A.D.2d 182, 695N.Y.S.2d 169, leave to appeal granted 94 N.Y.2d 798, 700 N.Y.S.2d 431, 722 N.E.2d 511, leave to appeal gran-ted 94 N.Y.2d 799, 700 N.Y.S.2d 432, 722 N.E.2d 512, leave to appeal granted 94 N.Y.2d 925, 708 N.Y.S.2d364, 729 N.E.2d 1163, affirmed 95 N.Y.2d 254, 716 N.Y.S.2d 361, 739 N.E.2d 727. False Pretenses 8

Elements of crime of larceny by false pretenses are intent to deprive owner of property, making of false repres-entation, knowledge of falsity, obtaining property of another, and that owner of property was induced by repres-entation to give up property. People v. Chaitin (2 Dept. 1983) 94 A.D.2d 705, 462 N.Y.S.2d 61, affirmed 61N.Y.2d 683, 472 N.Y.S.2d 597, 460 N.E.2d 1082. See, also, People v. Miller, 1902, 169 N.Y. 339, 62 N.E. 418;People v. Pollack, 1963, 38 Misc.2d 1075, 239 N.Y.S.2d 602. False Pretenses 4

Rule that false representation must pertain to existing circumstances rather than to promise not intended to befulfilled is applicable where statutory crime of obtaining by false pretenses is involved, but is not applicablewhere common law crime of larceny by trick and device is involved. People v. Benevento (3 Dept. 1963) 19A.D.2d 561, 239 N.Y.S.2d 761. False Pretenses 7(5); Larceny 14(1)

In a prosecution, under former Penal Law 1909, § 1290 [now this section], for larceny by false pretenses, it is



immaterial whether the person from whom the money was obtained could have recovered it from the defendant.People v. Koller (1 Dept. 1906) 116 A.D. 173, 101 N.Y.S. 518, affirmed 187 N.Y. 572, 80 N.E. 1116.

Larceny by means of false pretenses is committed when a person obtains possession of personal property bymeans of a false material statement about a past or presently existing fact. People v. Norman, 2004, 6 Misc.3d317, 789 N.Y.S.2d 613. False Pretenses 1

To constitute the crime of larceny by false pretenses, it must be established that there was a criminal intent todeprive an owner of his property, that defendant made a false representation of an existing fact, that he knewsuch representation was falsely made, that he obtained property as a result, that the person to whom the repres-entation was made relied upon that representation, and that such person was induced thereby to give his propertyto the defendant. People v. Block & Kleaver, Inc., 1980, 103 Misc.2d 758, 427 N.Y.S.2d 133. See, also, Peoplev. Soto, 1974, 76 Misc.2d 491, 352 N.Y.S.2d 144; People v. Lofton, 1973, 73 Misc.2d 285, 340 N.Y.S.2d 984,supplemented 78 Misc.2d 202, 356 N.Y.S.2d 791. False Pretenses 4

Larceny by false pretense need not be based on oral statement but may be based upon conduct. People v. Hoch-berg, 1976, 87 Misc.2d 1024, 386 N.Y.S.2d 740. False Pretenses 7(2)

At common law, to constitute crime of obtaining property by “false pretenses,” it is necessary to allege andprove the false pretenses, that property was obtained thereby, that false pretenses were made with intent to cheatand defraud, and that money was paid in reliance upon and under inducement of false pretenses. People v.Sloane, 1937, 165 Misc. 444, 300 N.Y.S. 1032, modified on other grounds 254 A.D. 780, 4 N.Y.S.2d 784, af-firmed 279 N.Y. 724, 18 N.E.2d 679. False Pretenses 38

At common law, crime of obtaining money by false pretenses could be established only by proof that money wasobtained by false representations of existing facts, in reliance upon which possession of money was parted with.People v. Krumme, 1936, 161 Misc. 278, 292 N.Y.S. 657. False Pretenses 7(5)

The assumption of an obligation under a contract could not be the subject of larceny by false pretenses. People,on Complaint of McGovern, v. Weisbard, 1931, 139 Misc. 385, 248 N.Y.S. 399.

The false representations need not be express, for the conduct of a person and the natural inferences to be drawntherefrom may speak louder than mere words. Dinnebeil v. Ringer, 1917, 101 Misc. 658, 167 N.Y.S. 952.

31. ---- Intent, false pretenses

Defendant was not guilty of obtaining money under false pretenses where the false pretenses were not made withintent to cheat or defraud complainant. People v. Baker, 1884, 96 N.Y. 340.

Proof of intent in larceny by false promise cases is rarely direct and, therefore, must be inferred from all of thefacts and circumstances. People v. Kowallis (4 Dept. 2003) 1 A.D.3d 1026, 767 N.Y.S.2d 183. False Pretenses



39

Evidence warranted inference that defendant deliberately misrepresented contents of a package which he soldand falsely promised to return with three more packages in exchange for the money he had already received, asrequired to support robbery conviction. People v. Overton (1 Dept. 2003) 309 A.D.2d 571, 765 N.Y.S.2d 344,leave to appeal denied 1 N.Y.3d 577, 775 N.Y.S.2d 793, 807 N.E.2d 906. Robbery 24.10

Criminal intent to defraud is essential element of crime of larceny by false pretenses. People v. Powell (2 Dept.1964) 22 A.D.2d 959, 256 N.Y.S.2d 117.

Evidence was insufficient to establish false pretense larceny in connection with union books and identificationplates sold to seamen who knew that they were not validly issued where there was no proof that defendant knewof absence of book records to support credentials. People v. Dowridge (1 Dept. 1964) 21 A.D.2d 656, 249N.Y.S.2d 739. False Pretenses 49(1)

32. ---- Impersonation, false pretenses

A conviction of larceny will be sustained where the evidence shows that the defendant bought goods saying thathe would pay for them on their delivery by an expressman, that one of his agents impersonated an expressmanand obtained possession of the goods, and that he later sent a worthless check in payment for the goods and re-fused either to return them or pay for them. Shipply v. People, 1881, 86 N.Y. 375.

Evidence that dealer in textiles at time when there was a critical shortage, by use of a spurious document, byrepresenting himself as an agent of an accredited charitable organization, and by claiming to purchase for reliefof needy persons overseas, obtained textiles for himself at an advantageous price, was sufficient to warrant deal-er's indictment for receiving property in false character in violation of this section. People v. Yarmish, 1947, 189Misc. 1041, 68 N.Y.S.2d 618. Indictment And Information 10.2(11)

33. ---- Means or ability to pay, false pretenses

Defendant's conviction for larceny was supported by evidence that he gained the confidence of merchants bypurchasing and timely paying for relatively small quantities of diamonds and that he then substantially increasedthe volume of his purchases, paying for the gems with checks and promissory notes which were never honored.People v. Omrami (1 Dept. 1989) 155 A.D.2d 369, 548 N.Y.S.2d 158, appeal denied 75 N.Y.2d 922, 555N.Y.S.2d 41, 554 N.E.2d 78. False Pretenses 49(3)

An oral statement that one dealing with a person will find the true statement of his financial condition in a writ-ten statement previously given was not an oral pretense within former Penal Law 1909, § 947. People ex rel.Woronoff v. Mallon (1 Dept. 1914) 166 A.D. 840, 150 N.Y.S. 705, affirmed 222 N.Y. 456, 119 N.E. 102. See,also, People v. Levin, 1907, 119 A.D. 233, 104 N.Y.S. 647, affirmed 194 N.Y. 554, 87 N.E. 1124.



A statement by one seeking credit that he has a quantity of diamonds stored with a reputable jewelry house wasa representation as to his means or ability to pay within former Penal Law 1909, § 947. People v. Whitney (1Dept. 1911) 146 A.D. 98, 130 N.Y.S. 465.

A representation that another is the brother and partner of one seeking credit and that his rating may be found ina commercial report, when in fact the parties are not related or in partnership, was not within former Penal Law1909, § 947. People v. Snyder (1 Dept. 1906) 110 A.D. 699, 97 N.Y.S. 469.

Defendant who obtained possession of his $10,000 note from finance company to which he was indebted by as-signing fraudulent accounts receivable to the finance company was guilty of grand larceny committed by the useof fraudulent and false representations. People v. Pollack, 1963, 38 Misc.2d 1075, 239 N.Y.S.2d 602. False Pre-tenses 7(1)

Incorrect statements as to financial condition of casualty corporation by vendor of half-interest therein warrantedholding him for grand jury on complaint charging larceny by false pretenses. People v. Landon, 1933, 147 Misc.642, 263 N.Y.S. 522. Criminal Law 238(4)

Affidavits alleging defendant induced complainant to sell him merchandise by false statement that he owned calfand would deliver proceeds thereof to complainant showed false pretense related to purchaser's ability to pay,and affirmatively showed no crime was committed. People v. Williams, 1930, 135 Misc. 564, 238 N.Y.S. 712.False Pretenses 7(4)

Obtaining money from a bank on false oral statements as to the amounts which the defendant's firm owed otherbanks, is “a purchase of property” within the meaning of former Penal Law 1909, § 947 which applies whetherthe defendant obtained the money by false representations as to his financial condition or by falsely stating hisability to repay, and accordingly, a certificate of reasonable doubt will be issued where it appears that the de-fendant was charged in the indictment with having obtained the money by false representations made on July 22,1921, but that the only written statements offered in evidence gave the firm's indebtedness to other banks as ofMay 20, 1921. People v. Wagner, 1923, 120 Misc. 214, 198 N.Y.S. 65, affirmed 208 A.D. 828, 203 N.Y.S. 946.

34. ---- Misrepresentations, false pretenses

Taxpayer who had marriage annulled could not claim deduction of amounts of money he had given his allegedwife for clothing and spending money during the years he believed himself lawfully married to her on groundthat he was the victim of larceny by false pretenses under this section [Penal Law 1909, § 1290] because hiswife who had previously been divorced by a New York decree which prohibited remarriage within the state wentthough a marriage ceremony with taxpayer in New York without disclosing the prohibition in absence of proofthat putative wife went through ceremony for purpose of obtaining the moneys in question. Bonney v. C.I.R.,C.A.21957, 247 F.2d 237, certiorari denied 78 S.Ct. 333, 355 U.S. 906, 2 L.Ed.2d 261. Internal Revenue3416.1

Evidence supported defendant's prosecution for larceny by false pretenses, rather than larceny by false promise,



where he made material misrepresentation of fact that he owned vehicle and had power to sell it; he told victimthat he had seen particular vehicle at auction and planned to acquire it for her, he brought vehicle to victim fortest drive, and he told her that he needed money “to get title processed” and gave her Department of MotorVehicle forms to sign. People v. Norman, 1995, 85 N.Y.2d 609, 627 N.Y.S.2d 302, 650 N.E.2d 1303, on remand217 A.D.2d 902, 629 N.Y.S.2d 920. False Pretenses 49(4)

Bank loan officer's conviction for larceny by false pretenses was supported by evidence that, with knowledge ofcoconspirator's intentional false representations and misstatements on loan applications, officer misrepresentedcoconspirator's financial status to colleagues at bank inducing coapproval of loans beyond officer's own lendinglimit, induced colleagues to cash checks on coconspirator's overdrawn account by approving checks, and misrep-resented coconspirator's credit standing in recommending bank approval of loans which eventually went into de-fault, and cashed checks on account containing insufficient funds. People v. Zimmerman, 1993, 81 N.Y.2d 979,599 N.Y.S.2d 524, 615 N.E.2d 1008, reargument denied 82 N.Y.2d 706, 601 N.Y.S.2d 586, 619 N.E.2d 664.False Pretenses 49(1)

In prosecution of an indictment charging defendant with larceny by false pretenses, evidence sufficiently estab-lished that defendant received monies of the state, his employer, in the form of salary because of state's relianceupon his false statements concerning his absence from work as a result of jury service, notwithstanding that de-fendant received the money before the false statements were made since state would have deducted a portion ofhis salary from a subsequent paycheck if defendant had correctly reported his absences from work and thereforeevidence was sufficient to support his conviction for a grand larceny in the third degree. People v. Drake, 1984,61 N.Y.2d 359, 474 N.Y.S.2d 276, 462 N.E.2d 376. Larceny 55

A defendant who had left engineering firm, which had been hired by state to supervise highway contractor'swork, a year prior to date of asserted larceny in presenting false claims to the state, and who was not shown tohave had knowledge that quantities shown of unexcavated material would be copied in certificate signed byfirm's officer 12 months later or that figures were false could not be charged with larceny. People v. YonkersContracting Co., 1966, 17 N.Y.2d 322, 270 N.Y.S.2d 745, 217 N.E.2d 829. Larceny 27

A person who, with criminal intent and by false representation of fact relied on by seller, obtains more than thatto which he knows he would be entitled as a purchaser in his business as retailer were he to tell truth, is guilty oflarceny. People v. Kirkup, 1958, 4 N.Y.2d 209, 173 N.Y.S.2d 574, 149 N.E.2d 866. False Pretenses 7(1)

Defendant's theft, based partially on false pretenses wherein defendant and his accomplices developed a schemeto steal money from a trust by proposing that the trust pay for repairs to its beneficiary's home when they neverintended to make such repairs, did not support second degree grand larceny conviction, but instead supportedthird degree grand larceny conviction, where only the latter two of three checks issued to defendants, each in theamount of $24,649, were based upon defendant's false representations of past or existing fact, and the first checkwas issued before defendant and his accomplices falsified inspection reports or made false representations ofpast or existing facts; thus, defendant's theft by false pretenses was only in the approximate amount of $49,000,which was insufficient to meet $50,000 second degree grand larceny threshold. People v. Avino (4 Dept. 2006)34 A.D.3d 1251, 826 N.Y.S.2d 860. False Pretenses 20.5



Larceny by false pretenses generally requires proof of affirmative misrepresentations of past or presently exist-ing fact, rather than mere omissions; however, failure of seller of securities to disclose every material fact maybe basis of larceny conviction. People v. Sala (3 Dept. 1999) 258 A.D.2d 182, 695 N.Y.S.2d 169, leave to appealgranted 94 N.Y.2d 798, 700 N.Y.S.2d 431, 722 N.E.2d 511, leave to appeal granted 94 N.Y.2d 799, 700N.Y.S.2d 432, 722 N.E.2d 512, leave to appeal granted 94 N.Y.2d 925, 708 N.Y.S.2d 364, 729 N.E.2d 1163, af-firmed 95 N.Y.2d 254, 716 N.Y.S.2d 361, 739 N.E.2d 727. False Pretenses 4

Conviction of petit larceny was supported by evidence that defendant falsely stated to victim that he was an at-torney, that he deceived her as to meaning of pro se in her divorce papers, and that he refused to supply bill forlegal services, as well as defendant's suspect testimony concerning disposition of funds paid by victim. People v.Romero (3 Dept. 1997) 244 A.D.2d 670, 664 N.Y.S.2d 179, appeal granted 91 N.Y.2d 879, 668 N.Y.S.2d 577,691 N.E.2d 649, reversed 91 N.Y.2d 750, 675 N.Y.S.2d 588, 698 N.E.2d 424. False Pretenses 49(1)

Evidence that defendant, a corporate president, made false statements to bank in order to obtain loan for corpor-ation to purchase parking lot, which corporation already owned, was sufficient to support grand larceny convic-tion on theory both larceny by false promise and larceny by false pretenses. People v. Ponnapula (1 Dept. 1997)229 A.D.2d 257, 655 N.Y.S.2d 750. False Pretenses 49(1)

Evidence supported convictions for larceny by false pretenses; evidence showed that each defendant intention-ally made false statements, which misled bottling company into improperly crediting defendants' corporate ac-count for goods that were never delivered, or goods that were improperly sold by defendants rather thanprovided to their customers for free, as well as improperly crediting defendants with commissions for goods thatwere not delivered, and evidence also showed that defendants falsified numerous records with respect to custom-ers' names, addresses, and goods delivered. People v. Cambria (1 Dept. 1994) 204 A.D.2d 167, 612 N.Y.S.2d 22,appeal denied 84 N.Y.2d 823, 617 N.Y.S.2d 143, 641 N.E.2d 164. False Pretenses 49(1)

Defendant obtained complainant's money by “false pretenses” where he falsely represented, as a present fact,that the “money was in the market” and thereby conveyed that his company was financially sound and inducingthe complainant to invest in it, when in fact the company had no money. People v. Smith (1 Dept. 1993) 193A.D.2d 423, 597 N.Y.S.2d 338, leave to appeal denied 81 N.Y.2d 1080, 601 N.Y.S.2d 600, 619 N.E.2d 678.False Pretenses 7(4)

Defendant electrical contractor's review of lightning damage to home and estimate that repairs would cost$2,024, his statement that work would be performed the next day, and his cashing of check for $1,012 fromhomeowner given at time of estimate, were not sufficient to establish the crime of larceny by false pretenses, ab-sent any evidence that repairs defendant intended to perform were not worth $2,024 or evidence that representa-tions induced homeowners to turn over check to defendant. People v. Fangiullos (4 Dept. 1992) 186 A.D.2d1007, 588 N.Y.S.2d 673. False Pretenses 49(2); False Pretenses 49(5)

Evidence before grand jury was sufficient to establish that defendants wrongfully obtained property of anotherby false pretenses and supported grand jury's charge of larceny in the second degree; evidence indicated that de-fendants falsely represented validity of worthless letter of credit which they provided to computer company in



order to induce company to deliver shipment of computer hardware and that shipment was made by company inreliance upon validity of letter of credit. People v. Dibble (4 Dept. 1987) 135 A.D.2d 1075, 523 N.Y.S.2d 266.Indictment And Information 10.2(11)

Person who obtains possession of property by false representations as to his purpose or intention is guilty of lar-ceny. People v. Freeman (4 Dept. 1984) 99 A.D.2d 648, 472 N.Y.S.2d 215. False Pretenses 7(1)

Record failed to establish that defendant took salary at rate in excess of that authorized and approved in employ-er's bankruptcy proceedings, or that there was sufficient direct causal relationship between any implicit misrep-resentation by silence and payments under bankruptcy order, and thus application of criminal statutes as to lar-ceny to payments received under such order was not warranted. People v. Allen (1 Dept. 1980) 79 A.D.2d 592,434 N.Y.S.2d 234. Larceny 55

Wrongdoer who obtains possession of property by false representations as to his purpose or intention is guilty oflarceny under this section and at common law and loss sustained by owner of property under such circumstancesis covered where policy provides “comprehensive” coverage for loss due to larceny. Sacks v. Hartford Ins. Co.(2 Dept. 1979) 68 A.D.2d 48, 416 N.Y.S.2d 292. Insurance 2706(1)

Defendants who were alleged to have stolen property by means of false and fraudulent representations to namedpersons that additional investment funds were needed to buy existing limited partnership shares and who werealleged to have known that such representations were false, had not committed larceny where investors receivedwhat they bargained for. People v. Henning (2 Dept. 1973) 42 A.D.2d 286, 346 N.Y.S.2d 370. Larceny14(1)

Convictions on false pretense and bribery charges were not inconsistent and were amply supported by proof, in-cluding evidence that defendants, who were retained by urban renewal agency to appraise certain real property,had falsely represented to property owner that their appraisals were subject to review and approval by a certainofficial in Washington, D.C., and that approval of an inflated appraisal could be secured by paying that official a$5,000 bribe, when in fact no such official existed, and that when city would actually pay property owner an in-flated price for his property, a second $5,000 was to be turned over to defendants themselves. People v. Selig-man (2 Dept. 1970) 35 A.D.2d 591, 313 N.Y.S.2d 593, affirmed as modified on other grounds 28 N.Y.2d 788,321 N.Y.S.2d 901, 270 N.E.2d 721, reargument denied 29 N.Y.2d 514, 323 N.Y.S.2d 982, 272 N.E.2d 490, rear-gument denied 29 N.Y.2d 551, 324 N.Y.S.2d 1031, 272 N.E.2d 589. Criminal Law 878(4)

Evidence sustained conviction of undertaker of grand larceny, second [now third] degree, for obtaining moneyby false pretenses that corpses entrusted to him for burial had been interred. People v. Ackley, 1946, 270 A.D.958, 62 N.Y.S.2d 771, affirmed 296 N.Y. 731, 70 N.E.2d 544, motion denied 296 N.Y. 825, 72 N.E.2d 16, certi-orari denied 67 S.Ct. 1081, 330 U.S. 846, 91 L.Ed. 1290. False Pretenses 49(1)

A contractor is guilty of larceny by false pretenses where he obtains money by presenting false and fraudulentvouchers regarding work done or materials purchased by him. People v. Hudson Valley Const. Co. (3 Dept.



1915) 165 A.D. 626, 151 N.Y.S. 314, affirmed 217 N.Y. 172, 111 N.E. 472.

Grand jury could conclude that defendant made misrepresentation concerning past or present fact, that he had in-curred driving expenses while traveling in his capacity as state assemblyman, when defendant submitted vouch-ers seeking reimbursement for driving expenses for which he had paid using corporate credit card furnished tohim as chairman of county political committee, and therefore evidence was legally sufficient to support chargethat defendant committed third-degree grand larceny by false pretenses, notwithstanding contention that defend-ant personally “incurred” expenses, despite charging them to corporate credit card, because expenses were nolonger his own only when committee paid credit card bills, after he had submitted vouchers, such that he couldonly be charged with larceny predicated on false promise of future conduct. People v. Norman, 2004, 6 Misc.3d317, 789 N.Y.S.2d 613. Indictment And Information 10.2(11)

Defendants who presented checks drawn on accounts represented to have large positive balances as part of“check-kite” made false “statements” for purposes of prosecution for larceny by false pretenses. People v. Hal-loran, 1986, 131 Misc.2d 901, 501 N.Y.S.2d 985. False Pretenses 6

Defendants could be liable for larceny by false pretense based upon their acquiescence in one defendant's know-ing misrepresentation that he was buyer for enterprise, a misrepresentation which, grand jury could reasonablyhave concluded, induced seller to part with his goods, even if transaction underlying count of indictment char-ging larceny with regard to goods was a sale. People v. Kaminsky, 1985, 127 Misc.2d 497, 486 N.Y.S.2d 814.Indictment And Information 10.2(11)

If defendant had obtained money from passersby by falsely representing chains offered for sale as gold whenthey were not gold, he would be guilty of larceny. People v. Farrar, 1983, 120 Misc.2d 464, 466 N.Y.S.2d 221.False Pretenses 7(3)

Where practicing attorney and his codefendant allegedly represented to parties seeking to adopt newborn thateverything was “kosher” or “on the up and up,” alleged representation as to law of state to out-of-state nonlaw-yers was a misrepresentation leading party seeking to adopt to part with funds in reliance upon such representa-tion and, thus, if allegations were proved, defendants would be guilty of crime of grand larceny in the second de-gree. People v. Rosenstein, 1978, 92 Misc.2d 1069, 402 N.Y.S.2d 151. False Pretenses 15

35. ---- Omissions, false pretenses

Defendant's act of trading stock when he had duty to disclose the confidential information he possessed, or ab-stain from such trading, was a culpable omission sufficient to satisfy elements of larceny by false pretenses, al-though defendant made no affirmative representation, defendant's act of trading stock was a false communica-tion that he was permitted to trade. People v. Napolitano (1 Dept. 2001) 282 A.D.2d 49, 724 N.Y.S.2d 702,leave to appeal denied 96 N.Y.2d 866, 730 N.Y.S.2d 40, 754 N.E.2d 1123. False Pretenses 7(2)

36. ---- Reliance, false pretenses



In proving element of reliance of crime of larceny by false pretenses based on falsification of bank loan applica-tions, it was sufficient to show that bank agent involved in transaction was induced by defendant's misrepresent-ations to recommend that bank authorize loan, despite defendant's contention that element of reliance where vic-tim was a bank doing business as a corporation could only be established by evidence that corporate agent whogranted final loan approval in bank's name was the one induced by false representations. People v. Termotto,1993, 81 N.Y.2d 1008, 599 N.Y.S.2d 910, 616 N.E.2d 496. False Pretenses 10; False Pretenses 49(5)

Testimony of bank employees who played a major role in application approval process for each of defendant'sbank loans that they relied on defendant's false representations concerning his financial status in recommendingthat bank approve his loan request was sufficient to sustain defendant's conviction of second-degree grand lar-ceny arising out of his conduct associated with obtaining 11 loans at six different banks. People v. Termotto,1993, 81 N.Y.2d 1008, 599 N.Y.S.2d 910, 616 N.E.2d 496. False Pretenses 49(5)

The crime of obtaining money by false pretenses is complete when complainant parts with his money relyingupon false representations deliberately made to cheat him. People v. Von Brandenburg, 1925, 241 N.Y. 128, 149N.E. 221.

In order to prove crime of larceny by false pretenses, there is no requirement that reliance by business entity ondefendant's false pretenses be established through testimony of ultimate decision maker. People v. Termotto (4Dept. 1991) 178 A.D.2d 1025, 578 N.Y.S.2d 777, appeal granted 79 N.Y.2d 1008, 584 N.Y.S.2d 463, 594N.E.2d 957, affirmed 81 N.Y.2d 1008, 599 N.Y.S.2d 910, 616 N.E.2d 496. False Pretenses 49(5)

Under prosecution for larceny by false pretenses, one element that must be proved is reliance by the owner ofthe property on a false representation of past or existing fact; in the absence of such reliance, conviction for con-summated crime of larceny by false pretenses is legally impossible. People v. Pisciotta (3 Dept. 1983) 98 A.D.2d926, 470 N.Y.S.2d 928. False Pretenses 9

Theory of larceny by false pretense requires that such a larceny is not proven unless it appears that the owner ofproperty, relying on a false representation, voluntarily gave the thief possession or title to that property. Peoplev. Gross (4 Dept. 1976) 51 A.D.2d 191, 379 N.Y.S.2d 885. False Pretenses 4

To sustain conviction on theory of larceny by false pretenses, People must demonstrate reliance on the pretense.People v. Henning (2 Dept. 1973) 42 A.D.2d 286, 346 N.Y.S.2d 370. False Pretenses 9

Where claim that man owed defendants money was not one on which man could reasonably rely, element of re-liance necessary for proof of larceny by false pretenses was lacking in prosecution of defendants for attemptedgrand larceny, first degree and convictions therefore would be reversed. People v. Mancuso (4 Dept. 1966) 26A.D.2d 292, 273 N.Y.S.2d 940, reargument denied 27 A.D.2d 643, 275 N.Y.S.2d 503, modified on othergrounds 22 N.Y.2d 679, 291 N.Y.S.2d 370, 238 N.E.2d 757, certiorari denied 89 S.Ct. 320, 393 U.S. 946, 21L.Ed.2d 284, reargument denied 23 N.Y.2d 742, 296 N.Y.S.2d 1025, 244 N.E.2d 88, reargument denied 27N.Y.2d 670, 313 N.Y.S.2d 1027, 261 N.E.2d 913. False Pretenses 9



Although, in respect to indictment's three counts charging grand larceny in the second degree in that adoptiveparents parted with their money in reliance upon a false representation by defendant lawyer that the placementof newborns with them was lawful, the evidence failed to sustain the first and third counts, the second count wassupported by evidence that defendant had superior knowledge as to the law and made false representations withrespect thereto upon which the adoptive parents, one of whom was a nonpracticing attorney, relied in partingwith their money. People v. Michelman, 1978, 93 Misc.2d 297, 403 N.Y.S.2d 417. False Pretenses 49(1)

Evidence indicating that buyers of automobile did not act in reliance on a pretense that the automobile was newand that they purchased the vehicle at less than its average retail value did not establish the criminal intent ne-cessary to convict dealer and dealer's officer of larceny of the difference in value between a new automobile anda used automobile. People v. Altman, 1975, 83 Misc.2d 771, 372 N.Y.S.2d 926. False Pretenses 49(1)

In order to establish grand larceny by false pretenses, it is not necessary that the false pretenses of a past or ex-isting fact alleged to have been made should be the sole inducement by which the property is parted with, if thefalse pretense had a preponderating influence, sufficient to turn the scale, although other considerations operatedupon mind of the complainant. People v. Lehrer, 1943, 182 Misc. 645, 45 N.Y.S.2d 170. False Pretenses 9

37. ---- Title to property, false pretenses

A person is not guilty of larceny by false pretense because he has not title to property which he undertakes tosell, or says he owns, provided he vests good title in the purchaser at the time he pays the consideration for theproperty. People v. Wheeler, 1902, 169 N.Y. 487, 62 N.E. 572.

Though, for criminal purposes, common-law larceny and obtaining property by false pretenses are now com-bined under former Penal Law 1909, § 1290, distinction is still maintained in determining whether title to prop-erty obtained is void or voidable. Stanton Motor Corp. v. Rosetti (3 Dept. 1960) 11 A.D.2d 296, 203 N.Y.S.2d273. False Pretenses 1; Larceny 1

In case of “larceny,” possession of thing allegedly stolen is obtained by fraud or artifice with a felonious design,and title still remains in the owner, where as in “obtaining property by false pretenses,” title as well as posses-sion is parted with. People v. Stiller (1 Dept. 1938) 255 A.D. 480, 7 N.Y.S.2d 865, affirmed 280 N.Y. 519, 19N.E.2d 923. False Pretenses 20

38. Fraud involving public funds

Evidence was insufficient to convict defendant of grand larceny in third degree on basis of public assistancefraud, in absence of proof establishing that defendant received public assistance to which he would not havebeen entitled had the Department of Social Welfare known the true facts with respect to defendant's employmentincome during period that he was receiving public assistance and establishing that the specific value of suchpublic assistance exceeded $250. People v. Hunter, 1974, 34 N.Y.2d 432, 358 N.Y.S.2d 360, 315 N.E.2d 436.False Pretenses 49(1)



Evidence that partnership was formed for fraudulent purpose of filing vouchers seeking payment for transporta-tion services to medicaid patients served by department of social services, that false claims were filed, that de-fendant was aware that false claims were filed, and that defendant told prosecution witness who was outside thecourtroom waiting to testify “not to remember anything” supported defendant's conviction for third-degree con-spiracy, third-degree grand larceny, and six counts of first-degree offering a false instrument for filing. People v.Nicholos (3 Dept. 1985) 108 A.D.2d 1015, 485 N.Y.S.2d 585. Conspiracy 47(3.1); False Pretenses49(3); Larceny 65

In prosecution for grand larceny in the third degree and offering a false instrument for filing in the first degree,based on failure to report changes in their household income and assets to Department of Social Services whilethey received public assistance, there was sufficient evidence of intent to support conviction. People v. Cornell(3 Dept. 1984) 103 A.D.2d 953, 479 N.Y.S.2d 772. False Pretenses 49(3); Larceny 55

In view of evidence that defendant would not have received any authorizations to purchase food stamps duringthe time that he participated in the program had the true status of his household income been disclosed, his mis-representations on that subject were material and properly warranted inference that defendant, who was chargedwith second-degree larceny, “wrongfully” obtained the cards which authorized the purchase of the stamps.People v. Seymour (3 Dept. 1976) 55 A.D.2d 737, 389 N.Y.S.2d 467. False Pretenses 49(1)

Actions of welfare assistance recipient in fraudulently receiving public assistance grants constituted violationsof both this section and Social Services Law § 145 making it a misdemeanor to obtain public assistance byfraudulent statement or device. People v. Prim (4 Dept. 1975) 47 A.D.2d 409, 366 N.Y.S.2d 726, modified onother grounds 40 N.Y.2d 946, 390 N.Y.S.2d 407, 358 N.E.2d 1033. False Pretenses 15

To extent that Department of Social Services was deprived of opportunity to effectively assert right to a lienagainst cause of action of public assistance recipient for personal injuries by reason of recipient's denial of exist-ence of any such litigation in her periodic applications for recertification, Department had been deprived of thatbenefit by a knowing false representation made by recipient, but that did not constitute crime of larceny by falsepretenses or crime of larceny with respect to payments received after settlement, since Department was duly ad-vised on next day that she no longer wanted public assistance. People v. Bellamy, 1977, 92 Misc.2d 211, 399N.Y.S.2d 990. False Pretenses 15

Where defendant charged with fraudulently receiving public assistance from department of social services byconcealing and misrepresenting facts of her employment with board of education only received income of $54per week from her job and it was not shown that she would not have been entitled to some public assistance re-gardless of income, larceny under false pretenses was not shown. People v. Lofton, 1973, 73 Misc.2d 285, 340N.Y.S.2d 984, supplemented on other grounds 78 Misc.2d 202, 356 N.Y.S.2d 791. False Pretenses 14

39. Voluntary delivery of property

Inasmuch as property owners, from whom defendants-appraisers allegedly solicited and accepted bribes to in-flate appraisal of property, did not involuntarily part with their money, defendants could not be deemed guilty of



consummated or attempted common-law larceny. People v. Seligman (2 Dept. 1970) 35 A.D.2d 591, 313N.Y.S.2d 593, affirmed as modified on other grounds 28 N.Y.2d 788, 321 N.Y.S.2d 901, 270 N.E.2d 721, rear-gument denied 29 N.Y.2d 514, 323 N.Y.S.2d 982, 272 N.E.2d 490, reargument denied 29 N.Y.2d 551, 324N.Y.S.2d 1031, 272 N.E.2d 589. Larceny 13

Essential element of common-law “larceny” is the taking of property of another without his consent and againsthis will. Stanton Motor Corp. v. Rosetti (3 Dept. 1960) 11 A.D.2d 296, 203 N.Y.S.2d 273. Larceny 1

It is basic to the concept of common law larceny that if an individual owner voluntarily delivers his property toone who wishes to steal it, there is no trespass and consequently no crime, even if the voluntary handing over ofthe property is done only for the purpose of catching a thief. People v. Rollino, 1962, 37 Misc.2d 14, 233N.Y.S.2d 580. Larceny 13

40. False promises--In general

Crime of larceny by false promise is limited to situations in which individual has made promise while harboringpresent intention not to perform. People v. Norman, 1995, 85 N.Y.2d 609, 627 N.Y.S.2d 302, 650 N.E.2d 1303,on remand 217 A.D.2d 902, 629 N.Y.S.2d 920. False Pretenses 7(5)

Conviction of crime of larceny by false promise cannot rest on mere probabilities. People v. Luongo, 1979, 47N.Y.2d 418, 418 N.Y.S.2d 365, 391 N.E.2d 1341. Larceny 55

Mere simple breach of contract does not constitute crime of larceny by false promise. People v. Churchill, 1979,47 N.Y.2d 151, 417 N.Y.S.2d 221, 390 N.E.2d 1146. False Pretenses 7(1)

The fact that a charitable entertainment for which tickets had been sold did not take place did not warrant con-viction where it appeared that arrangements had in fact been made therefor by the defendant, an officer of thecharity. People v. Norman, 1932, 260 N.Y. 75, 182 N.E. 676.

In oral argument on appeal, the People could not raise larceny by false promise as possible basis for defendants'conviction, absent anything in the record indicating that they intended to prove this type of larceny; based uponthe People's pleadings, prosecutor's opening statement, and charge conference, defendants had no reason to be-lieve that larceny by false promise was basis for charge against them or to object to its consideration. People v.Vandermuelen (3 Dept. 2007) 42 A.D.3d 667, 839 N.Y.S.2d 835, leave to appeal denied 9 N.Y.3d 965, 848N.Y.S.2d 33, 878 N.E.2d 617. Criminal Law 1132

Where defendant's failure to perform as promised is nothing more than failure to pay debt or inability to performcontractual obligation, his conduct is simply a breach of contract, a civil wrong, and does not amount to larceny.People v. Carey (3 Dept. 1984) 103 A.D.2d 934, 479 N.Y.S.2d 789. False Pretenses 7(3)

Defendant contracting officers of corporation that contracted with city for installation of residential water meters



did not steal government contracts they entered into so as to render officers guilty of larceny by false promise,despite contention that officers lacked intent to keep their covenants requiring payment of certain wages and re-quiring use of master plumbers; People sought to apply larceny by false promise statute not to property obtainedpursuant to alleged promise but, rather, to define such property as the contractual act itself, and primary consid-eration in contracts was performed. People v. Vanguard Meter Service, Inc., 1994, 160 Misc.2d 685, 611N.Y.S.2d 430. False Pretenses 11

There is higher burden of proof in regard to larceny by false promise because of close relationship this form oflarceny holds to mere civil wrongs. People v. Kaminsky, 1985, 127 Misc.2d 497, 486 N.Y.S.2d 814. False Pre-tenses 49(1)

41. ---- Intent, false promises

Under New York law, signing the personal guaranty without the intent to repay the loan, if necessary, consti-tutes larceny by false promise. Ponnapula v. Spitzer, C.A.2 (N.Y.)2002, 297 F.3d 172. False Pretenses 7(1)

State court's determination that simultaneously pledged collateral would not negate inference of intent to deprivevictim permanently of his property under larceny statute was not so unexpected under New York precedent as toviolate fair notice aspect of Due Process Clause, even though issue was one of first impression; holding was nat-ural step in state courts' refinement of long-enunciated principle that larcenous intent was shown when defendantintended to exercise control over another's property for so extended a period as to acquire major portion of itseconomic value or benefit. Ponnapula v. Spitzer, C.A.2 (N.Y.)2002, 297 F.3d 172. Constitutional Law4509(12); False Pretenses 7(1)

Larceny by false promise is committed when, pursuant to a scheme to defraud, a person or a third person obtainsproperty of another by means of a representation, express or implied, that future conduct will be engaged inwhen there is no intent that it will come about. People v. Kramer, 1998, 92 N.Y.2d 529, 683 N.Y.S.2d 743, 706N.E.2d 731, on remand 267 A.D.2d 328, 701 N.Y.S.2d 78. False Pretenses 1

Evidence in prosecution of broker engaged in business of purchasing retainage bonds to be held in custodialbank accounts for benefit of contractors performing work under agreements with political subdivisions was in-sufficient as to element of intent to sustain conviction for larceny by false promise. People v. Ryan, 1977, 41N.Y.2d 634, 394 N.Y.S.2d 609, 363 N.E.2d 334. False Pretenses 49(2)

There was sufficient evidence that defendant intended to obtain property of victim by false promise to supporthis conviction of grand larceny in third degree by false promise; in addition to evidence of nonperformance,there was evidence establishing that facts and circumstances of case were wholly inconsistent with innocent in-tent or belief, and excluding to moral certainty every hypothesis except that of defendant's intention or beliefthat promise would not be performed. People v. Ruscito (4 Dept. 1994) 206 A.D.2d 841, 615 N.Y.S.2d 201, ap-peal denied 84 N.Y.2d 872, 618 N.Y.S.2d 17, 642 N.E.2d 336. False Pretenses 49(2)

Evidence that defendant made numerous false representations, that he gave worthless checks as security, that he



failed to take meaningful steps to carry out his promises, and that he had perpetrated almost identical scheme inpast was sufficient to demonstrate defendant's larcenous intent in prosecution for grand larceny by false promise.People v. Fenner (4 Dept. 1989) 155 A.D.2d 946, 547 N.Y.S.2d 766, appeal denied 75 N.Y.2d 770, 551N.Y.S.2d 912, 551 N.E.2d 113. Larceny 57

Defendant's conduct was inconsistent with an intent not to fulfill his agreement as required for conviction of lar-ceny by false promise; evidence showed that defendant contacted merchants in the bridal business and sold themadvertising space in a book for prospective brides, hired an assistant, set up telephone answering service andmail drop, opened a bank account, and devised copy for the ads and took ad copy to local printer for typesetting,paid his bills and finally published the booklet, although it was a year later than he had represented to the mer-chants. People v. Ferry (4 Dept. 1988) 142 A.D.2d 994, 530 N.Y.S.2d 416, appeal denied 73 N.Y.2d 891, 538N.Y.S.2d 803, 535 N.E.2d 1343. False Pretenses 49(2)

Evidence of defendant's other business dealings and his bleak financial condition was admissible in prosecutionfor grand larceny by means of false promise; evidence was relevant to issue of intent in that it established thatdefendant neither possessed the financial ability to perform his obligation to deliver merchandise for which hehad accepted prepayment nor was the novice businessman he purported to be, and potential for undue prejudicedid not outweigh probative value of that evidence. People v. Patterson (3 Dept. 1987) 135 A.D.2d 883, 522N.Y.S.2d 281. False Pretenses 47

Evidence that defendant had agreed to sell car and deliver it upon receiving full payment, that defendant failedto do so, that defendant offered to give car to buyer after it had been stolen and damaged, and that buyer had re-fused delivery did not establish defendant's intent not to complete transaction and did not establish larceny byfalse promise. People v. Howard (4 Dept. 1986) 125 A.D.2d 986, 510 N.Y.S.2d 383. False Pretenses 49(2)

Evidence in defendant's prosecution for grand larceny based on his conduct with respect to a series of subtenantsin a loft, while circumstantial, was sufficient to sustain conviction, where evidence of intention not to performhis promises to subtenants did not rest on the fact alone that the promises were not performed but also rested onsurrounding circumstances, including repetition of defendant's conduct with respect to ten or a dozen subtenantsfrom whom he collected $13,000 which he never repaid although their occupancy either never began or lastedfor only a few days. People v. DeMuirier (1 Dept. 1984) 106 A.D.2d 266, 482 N.Y.S.2d 281.

In prosecution based on statute governing larceny by false promise, intent must be inferred from facts and cir-cumstances. People v. Carey (3 Dept. 1984) 103 A.D.2d 934, 479 N.Y.S.2d 789. False Pretenses 39

In prosecution which resulted in conviction of five counts of grand larceny by false promise based upon evid-ence that defendant, an insurance agent, fraudulently induced insurance client and family acquaintance to investlarge sums of money in various commercial and real estate ventures, trial court properly permitted the People tointroduce evidence of similar uncharged transactions between defendant and other insurance clients and asso-ciates because it was probative on issue of defendant's intent and showed common plan or scheme. People v.Coloney (4 Dept. 1983) 98 A.D.2d 969, 470 N.Y.S.2d 250. Criminal Law 370.14; Criminal Law371.38; Criminal Law 373.12



In prosecution for larceny by false promise, evidence that defendant accepted money for round-trip air fares toIsrael, but passengers had completed three quarters of their flight before being stranded, and that some effort hadbeen taken toward arranging last leg of journey failed to establish to moral certainty that promise was product ofpreconceived scheme to defraud. People v. Perlstein (2 Dept. 1983) 97 A.D.2d 482, 467 N.Y.S.2d 682. FalsePretenses 49(4)

Evidence that defendant induced victim to part with $25,000 by promising to make victim “chief of security” ofa nonexistent warehouse and by promising a 20% return on the “loan” during a period when defendant's finan-cial situation was chaotic and hopelessly desperate and that defendant engaged in various ruses to encouragevictim in the expectation of such job sufficiently established the necessary specific intent required to convict forthe crime of larceny by false promise. People v. Catruna (3 Dept. 1977) 60 A.D.2d 694, 400 N.Y.S.2d 385. FalsePretenses 49(2)

Evidence of obviously false statements contained in receipt as filled out by defendant, his evasiveness in re-sponse to numerous phone calls made to him by complaining witness, his failure to return money and inconsist-encies in statements about person who was going to sell him television sets in addition to his failure to performpromise by nondelivery of television set sufficiently showed fraudulent intent as material element of crime ofgrand larceny in third degree. People v. Rolchigo (3 Dept. 1970) 33 A.D.2d 1060, 307 N.Y.S.2d 412, affirmed28 N.Y.2d 644, 320 N.Y.S.2d 251, 269 N.E.2d 39. False Pretenses 49(2)

Even if testimony did not establish defendant's intent to obtain property by false promise to “a moral certainty,”there was ample evidence in record to establish defendant's larcenous intent to withhold property from its owner,as defined in provisions of this section governing petit larceny, beyond a reasonable doubt. People v. Newman,1976, 85 Misc.2d 761, 382 N.Y.S.2d 227. False Pretenses 49(2)

Evidence that defendant took art works from dealer by giving false promises to sell the works and return the pro-ceeds, minus a commission, to the dealer, that defendant failed to respond to various correspondence from artdealer requesting payment or return of the works and defendant's admissions that sales had been completed, andthat he had engaged in similar transactions demonstrated beyond a reasonable doubt and to a moral certainty thatdefendant had a fraudulent intent and was guilty of petit larceny. People v. Newman, 1975, 80 Misc.2d 975, 365N.Y.S.2d 409, affirmed 85 Misc.2d 761, 382 N.Y.S.2d 227. False Pretenses 49(2)

42. Extortion--In general

Fear of future economic harm that is reasonable is sufficient to establish extortion under New York law, becauseextortion does not require evidence of an actual ability to cause the threatened harm, only that the personthreatened believed that the defendant possessed such an ability. Kraft General Foods, Inc. v. Cattell, 1998, 18F.Supp.2d 280. Extortion 10

To constitute crime of extortion it is not essential that a defendant create fear existing in mind of prospectivevictim so long as he succeeds in persuading him that he possesses power to remove or to continue its cause, andinstills a new fear by threatening to misuse that power as a device to exact tribute. People v. Dioguardi, 1960, 8



N.Y.2d 260, 203 N.Y.S.2d 870, 168 N.E.2d 683, reargument denied 8 N.Y.2d 1100, 209 N.Y.S.2d 1025, 171N.E.2d 465. Extortion 10

The fact that the accused did not inspire fear in his intended victim is immaterial in a case of entrapment, and heis guilty of an attempt to commit extortion. People v. Gardner, 1894, 144 N.Y. 119, 38 N.E. 1003.

There was no identity of issues between criminal proceedings against defendant, in which he pled guilty to re-duced charge of attempted grand larceny by means of extortion, and civil proceedings for assault and battery, aswould entitle plaintiffs to partial summary judgment as to liability on basis of preclusive effect of criminal adju-dication, since the former concerned threats of future harm, whereas the latter concerned fear of imminent harmand actual contact, and, in defendant's plea allocution in criminal proceeding, neither defendant nor his code-fendant admitted that codefendant made physical contact with plaintiff, a necessary element of battery. Charkhyv. Altman (1 Dept. 1998) 252 A.D.2d 413, 678 N.Y.S.2d 40. Judgment 181(13); Judgment 715(2);Judgment 751

Extortion conviction was improper for lack of evidence that victim, who had been surrounded by concealed po-lice officers when he made payment with consent of and at direction of district attorney, was in fear as the resultof threats. People v. Bonsignore (4 Dept. 1964) 21 A.D.2d 309, 250 N.Y.S.2d 345. Extortion 39(1)

Use of force or fear to collect a debt may constitute extortion or attempted extortion. People v. Conforti, 1947,72 N.Y.S.2d 458.

43. ---- Threats, generally, extortion

Pleading was insufficient to allege Racketeer Influenced and Corrupt Organizations Act (RICO) predicate act ofextortion in violation of federal or New York law where complaint did not identify the victims of the alleged ex-tortion and indicate that some use or threat of force, however indirect, was used to compel their consent to partwith property. U.S. v. International Longshoremen's Ass'n, 2007, 518 F.Supp.2d 422. Extortion 33

Alleged conduct of joint labor-management committee in conducting systematic campaign of harassment againstelectrical contractors through filing of litigation and administrative complaints did not constitute extortion underNew York law or interference with commerce by threats or violence in violation of Hobbs Act, as such conductdid not involve threat of force, violence or fear. Building Industry Fund v. Local Union No. 3, Intern. Broth. ofElec. Workers, AFL-CIO, 1996, 992 F.Supp. 162, on reconsideration 992 F.Supp. 192, affirmed 141 F.3d 1151.Extortion 10; Extortion 22

Obtaining of property by means of threatened physical injury in futuro is not robbery but larceny by extortion.People v. Woods, 1977, 41 N.Y.2d 279, 392 N.Y.S.2d 400, 360 N.E.2d 1082. Robbery 7

To constitute crime of extortion no precise words are necessary to convey a threat, and it may be done by innu-endo or suggestion, and to ascertain whether a letter or oral proposal conveys a threat, all its language, together



with the circumstances under which it was written or spoken, and the relations between the parties may be con-sidered, and if it can be found that purport and natural effect of letter or oral proposal is to convey a threat thenthe mere form of words is unimportant. People v. Dioguardi, 1960, 8 N.Y.2d 260, 203 N.Y.S.2d 870, 168N.E.2d 683, reargument denied 8 N.Y.2d 1100, 209 N.Y.S.2d 1025, 171 N.E.2d 465. Extortion 10

No precise words are needed to convey a threat, as it may be done by innuendo or suggestion, and to ascertainwhether a letter conveys a threat, all its language, together with the circumstances under which it was written,and the relations between the parties may be considered, and if it can be found that the purport and natural effectof the letter is to convey a threat, then the mere form of words is unimportant. People v. Thompson, 1884, 97N.Y. 313.

Defendant who was allegedly involved in scheme to extort money from utility company by threatening to makepublic a scandalous rumor concerning one of utility's executives did not through his conduct carry the projectforward within dangerous proximity of the criminal end to be attained, and thus, could not be held liable to util-ity in private action based on attempted extortion, even assuming such a cause of action existed, where defend-ant did not communicate alleged extortionate statements to anyone but his attorneys. Niagara Mohawk PowerCorp. v. Testone (4 Dept. 2000) 272 A.D.2d 910, 708 N.Y.S.2d 527. Torts 436

Attorney's complaint in civil breach of contract action against wealthy executive demonstrated that allegedagreement was extortionate, in light of complaint's express assertion that attorney and executive entered intoagreement whereby executive agreed to pay large sums of money in exchange for attorney not revealing publiclywhat attorney knew about executive's personal life. Matter of Yao (1 Dept. 1997) 231 A.D.2d 346, 661 N.Y.S.2d199. Torts 436

Evidence in grand larceny prosecution was sufficient to establish that defendant extorted money from two fellowinmates by instilling in them a fear that they would be physically harmed if they did not pay him. People v.Thomas (2 Dept. 1985) 108 A.D.2d 884, 485 N.Y.S.2d 579. Extortion 39(1)

A verbal threat to blow the victim's head off unless he pays money was within this section [Penal Law 1909, §851]. People v. Vitusky (1 Dept. 1913) 155 A.D. 139, 140 N.Y.S. 19.

A written demand for money followed by the statement that the “night that you pay not will not pass” was athreat to do bodily injury within this section [Penal Law 1909, § 851]. People v. Misiani (2 Dept. 1912) 148A.D. 797, 133 N.Y.S. 291.

Extortion could be committed either by a written or a verbal threat, under [Penal Law 1909] § 851. People v.Misiani (2 Dept. 1912) 148 A.D. 797, 133 N.Y.S. 291.

A letter demanding a specified sum of money which must be paid “otherwise death will be the reward, and yourfamily will be destroyed” was within this section [Penal Law 1909, § 856] and the sender was guilty of black-mail. People v. Triscoli (1 Dept. 1907) 117 A.D. 120, 102 N.Y.S. 328.



Evidence that executive director of county Democratic committee, in telephone conversations with advisor to ju-dicial candidate, demanded that judicial candidate pay for primary day operations or no such operations wouldbe conducted anywhere on candidate's behalf, was legally sufficient to support indictment of chairman and exec-utive director on charges of conspiracy to commit grand larceny by extortion and coercion, though chairman didnot participate in conversations; executive director stated to candidate's advisor that his “principal” was adamantthat the money be paid. People v. Feldman, 2005, 7 Misc.3d 794, 791 N.Y.S.2d 361. Indictment And Informa-tion 10.2(10)

Evidence that chairman and executive director of county Democratic committee, acting in concert, demandedthat judicial candidate fund joint campaign with other candidates, and threatened to withdraw committee's en-dorsement if she did not comply, was legally sufficient to support indictment of chairman and executive directoron charges of grand larceny by extortion and attempted grand larceny by extortion, coercion, and conspiracy tocommit such crimes. People v. Feldman, 2005, 7 Misc.3d 794, 791 N.Y.S.2d 361. Indictment And Information

10.2(10); Indictment And Information 10.2(11)

44. ---- Accusation or prosecution of crime, extortion

Jury's award of $150,000,000 for non-economic damages did not deviate materially from what would be reason-able compensation under New York law, in plaintiff's action alleging defamation and intentional and negligentinterference with economic advantage, arising from defendant's statements in unauthorized amicus brief submit-ted in underlying forfeiture action and which subsequently appeared in Mexican media and alleged plaintiff's in-volvement in corruption, racketeering, money laundering and murder; plaintiff had positive reputationthroughout petroleum industry and reputation for honesty and fair business practice was recognized throughoutworld, defendant's statements were inflammatory, statements were circulated throughout world, and most espe-cially in plaintiff's home country of Mexico, remarks tended to damage plaintiff's reputation and cause mentalsuffering, including lost contracts valued at $289,950,000 and $69,000,000, and statements were made in courseof defendant's attempted criminal extortion. Cantu v. Flanigan, 2010, 705 F.Supp.2d 220. Damages 137;Libel and Slander 121(1)

A threat to accuse one of a crime, as of keeping a house of prostitution, is a means of inspiring fear which is de-nounced. People v. Gardner, 1894, 144 N.Y. 119, 38 N.E. 1003.

A demand for indemnity for a wrong, made in good faith, accompanied by a suggestion that legal proceedingswill be resorted to unless satisfaction is voluntarily made, is not a threat within the statute, although the wrong isone of the disclosure of which would bring disgrace upon the guilty party; but if the party making the demandknows that he has suffered no wrong, a threat to prosecute, unless settlement is made, might bring the case with-in the statute. People v. Wightman, 1887, 104 N.Y. 598, 11 N.E. 135.

Evidence sustained conviction of defendants, the manager and assistant manager of a grocery store, for extortionby compelling customer, who had been observed taking small amount of merchandise, to sign statement and paymuch larger amount than value of merchandise under threats to accuse customer of crime and to expose him todisgrace. People v. Fichtner (2 Dept. 1952) 281 A.D. 159, 118 N.Y.S.2d 392, affirmed 305 N.Y. 864, 114N.E.2d 212. Extortion 39(1)



Obtaining a settlement of a civil demand under a threat of a criminal prosecution is blackmail. Bianchi v. Leon(1 Dept. 1910) 138 A.D. 215, 122 N.Y.S. 1004.

Attorney conducting a litigation on a contingent basis who, under an assumed name, writes the defendant in afriendly tone that he should settle the case as there is a possibility that he will be prosecuted for perjury, is guiltyof blackmail. People v. Wickes (1 Dept. 1906) 112 A.D. 39, 98 N.Y.S. 163.

The fact that a letter threatening to proceed criminally does not charge any specific crime is immaterial, and oralevidence may be admitted to show the circumstances. People v. Eichler, 1894, 75 Hun 26, 58 N.Y.St.Rep. 177,26 N.Y.S. 998, appeal dismissed 142 N.Y. 642, 37 N.E. 567.

The threat, as made, need not contain a full description of the offense as charged in the indictment; it is suffi-cient if the language used in the writing, in connection with what preceded and what follows between theparties, imported a threat to charge the crime alleged, and so understood by the parties. People v. Gillian, 1888,50 Hun 35, 18 N.Y.St.Rep. 681, 2 N.Y.S. 476, affirmed 115 N.Y. 643, 21 N.E. 1117.

45. ---- Hatred, contempt or ridicule threatened, extortion

New York and federal extortion statutes applied to defendant's conduct of sending unsigned contract with pub-lisher to print defendant's claim that she was victim's child born out-of-wedlock, along with demand for $40 mil-lion from victim, whose reputation was threatened by that conduct; conduct was precise kind of private transac-tion, motivated purely by selfish gain, that extortion statutes validly punish. U.S. v. Jackson, 1997, 986 F.Supp.829, vacated 180 F.3d 55, on rehearing 196 F.3d 383, certiorari denied 120 S.Ct. 2731, 530 U.S. 1267, 147L.Ed.2d 993. Extortion 10; Extortion 22

Defendant whose participation in alleged scheme to extort money from utility company by threatening to makepublic a scandalous rumor concerning one of utility's executives was part of a larger endeavor to obtain recom-pense for a perceived wrong, and was but a small part of extensive criticism leveled at utility's managementthrough communications to, among others, Public Service Commission (PSC), did not commit crime of attemp-ted extortion, and thus could not be held liable in private action by utility based on attempted extortion, even as-suming such a cause of action existed. Niagara Mohawk Power Corp. v. Testone (4 Dept. 2000) 272 A.D.2d910, 708 N.Y.S.2d 527. Torts 436

As part of prima facie case of extortion by threatening to expose a secret tending to subject some person tohatred, contempt, or ridicule, there must be evidence of the nature of the secret or asserted fact which tends tosubject the complainant to hatred, contempt, or ridicule. People v. Homsey, 1977, 90 Misc.2d 1006, 396N.Y.S.2d 985. Extortion 10

46. ---- Strikes or boycotts, extortion

“Extortion” requires an intent to obtain that which in justice and equity the party is not entitled to receive, anddoes not extend to the use of force to obtain a legitimate union demand for higher wages. U. S. v. Enmons,



U.S.La.1973, 93 S.Ct. 1007, 410 U.S. 396, 35 L.Ed.2d 379. Extortion 9; Extortion 20

Local union's alleged attempted “shakedown” of employer through local union officials' demands for bribes didnot violate Hobbs Act or New York's extortion statute, absent showing that local union used force or violence orthreat thereof or that it instilled fear in employer. Andrea Doreen Ltd. v. Building Material Local Union 282,2004, 299 F.Supp.2d 129. Extortion 19

Strike violence is not encompassed by Hobbs Act or New York's extortion statute. Andrea Doreen Ltd. v. Build-ing Material Local Union 282, 2004, 299 F.Supp.2d 129. Extortion 8; Extortion 19

Fact that one of the defendants allegedly seeking payment of tribute as price for labor peace at employer's stores,which were trying to be organized by competing unions, was not an official of particular union engaged in pick-eting was immaterial to charge of extortion so long as he and company he controlled professed to have power toeliminate or continue it and used that power as a lever to exact tribute. People v. Dioguardi, 1960, 8 N.Y.2d 260,203 N.Y.S.2d 870, 168 N.E.2d 683, reargument denied 8 N.Y.2d 1100, 209 N.Y.S.2d 1025, 171 N.E.2d 465. Ex-tortion 10

A threat by an officer of a labor union to continue an unlawful boycott to the injury of the business of the con-cern boycotted unless he is paid a certain sum of money was within former Penal Law 1909, § 851. People v.Hughes, 1893, 137 N.Y. 29, 32 N.E. 1105. See, also, People v. Wilzig, 1886, 4 N.Y.Crim. 403.

A threat by an officer of a labor union that the employees of a concern, who have been on a strike and havesettled all their differences, will not return to work until a sum of money is paid him and that he will preventthem from so doing, which would result in injury to the employer's business, is a threat to do an unlawful actwithin former Penal Law 1909, § 851. People v. Barondess, 1892, 133 N.Y. 649, 31 N.E. 240. See, also, Peoplev. Weinseimer, 1907, 117 A.D. 603, 102 N.Y.S. 579, affirmed 190 N.Y. 537, 83 N.E. 1129.

Threats to small milk dealers that their supply of milk would be cut off, that they would have work stoppagesand that they would be put out of business would be sufficient to support charges of extortion and coercion.People v. Wisch, 1969, 58 Misc.2d 766, 296 N.Y.S.2d 882. Extortion 10; Extortion 11

Indictment alleging in effect that defendant together with other codefendants were acting through union businessrepresentative and threatened various store owners with posting picket line around store unless owners ceased tohave garbage and refuse removed by a certain non-union garbage and refuse collector and hired collector fromlist of firms which were in fact non-union, was sufficient to charge crime of extortion. People v. Squillante,1958, 12 Misc.2d 514, 173 N.Y.S.2d 749. Extortion 33

47. ---- Abuse of public position, extortion

Taking “under color of official right” within meaning of Hobbs Act is essentially similar to taking by instillingfear in victim that one will abuse his position as public servant under New York felony of larceny by extortion,



since coercive element is supplied by existence of public office itself. Matter of Margiotta, 1983, 60 N.Y.2d 147,468 N.Y.S.2d 857, 456 N.E.2d 798. Extortion 24(5)

Attorney's federal conviction on two counts of extortion, arising from his taking funds from a restaurant in ex-change for a reduction of administrative penalties while he was employed as a hearing officer for a city depart-ment of health, was essentially similar to the State felony of larceny by extortion, thus warranting automatic dis-barment. In re Huertas-Perez (1 Dept. 2000) 263 A.D.2d 275, 701 N.Y.S.2d 390. Attorney And Client59.14(6)

In choosing to charge defendant with larceny by extortion based on defendant's instilling fear he would use orabuse his official position as a police officer, prosecutor was not obligated to advise grand jury of affirmativedefense applicable to charge of larceny by extortion by instilling a fear that defendant would accuse victim ofcrime or cause criminal charges to be instituted against him. People v. Caban (1 Dept. 1999) 258 A.D.2d 87, 696N.Y.S.2d 1, issued 1999 WL 628113. Grand Jury 23

State Police Hearing Board's disciplinary determination that state trooper committed larceny by extortion by us-ing intimidation to obtain handguns which should have been surrendered for destruction as “nuisance weapons”was supported by gun owner's testimony, which denied trooper's claim that owner offered his guns for sale andwhich indicated that owner signed bill of sale because he had been threatened with arrest. Hricik v. McMahon (4Dept. 1998) 247 A.D.2d 935, 668 N.Y.S.2d 295. States 53

Facts, pleaded in count of indictment charging extortion, that defendant police officer obtained stated sum fromperson driving motor vehicle while intoxicated by threatening to report certain facts to Bureau of MotorVehicles, thereby causing him to fear loss of his operator's license, and evidence in trial thereunder, were insuf-ficient to establish crime of “extortion”. People v. Learman (4 Dept. 1941) 261 A.D. 748, 28 N.Y.S.2d 360. Ex-tortion 39(1)

A threat by an elevator inspector in a city bureau of buildings to stop the running of an elevator by means of acomplaint, unless paid a certain sum of money, constitutes an unlawful injury to property within the meaning offormer Penal Law 1909, § 851, although the elevator was being operated without a permit. People v. Sheridan (2Dept. 1919) 186 A.D. 211, 174 N.Y.S. 327.

A threat to deprive one of his employment unless money is paid was a threat within former Penal Law 1909, §851. People ex rel. Short v. Warden of City Prison (1 Dept. 1911) 145 A.D. 861, 130 N.Y.S. 698, affirmed 206N.Y. 632, 99 N.E. 1116.

48. ---- Property subject to extortion

Control over illegal intangible property, a gambling operation, was “property” that could be “delivered” underNew York's extortion statute. U.S. v. Ivezaj, C.A.2 (N.Y.)2009, 568 F.3d 88, for additional opinion, see 336Fed.Appx. 6, 2009 WL 1636018, post-conviction relief denied 2011 WL 6778475, subsequent determination2012 WL 1122972, certiorari denied 130 S.Ct. 1749, 559 U.S. 998, 176 L.Ed.2d 223, certiorari denied 130 S.Ct.



1750, 559 U.S. 998, 176 L.Ed.2d 223, certiorari denied 130 S.Ct. 1751, 559 U.S. 998, 176 L.Ed.2d 223. Extor-tion 11

Insurance company's alleged threats to discharge employee and his sales staff if more than 15% of sales were re-placement of old policies and to fire staff and condition reemployment on agreement to falsely accuse employeeof training staff to circumvent company policies did not extort property from policyholders under New Yorklaw; since policyholders retained ultimate choice and responsibility for any decision as to their life insurance, nospecial relationship existed between representative and policyholders. Giuffre v. Metropolitan Life Ins. Co.,1989, 129 F.R.D. 71. Extortion 10

Where defendant by means of threats to inflict personal injury upon business owner required latter to discontin-ue business of picking up refuse at particular restaurant, so that defendant could take over servicing of such res-taurant, defendant obtained “property” by extortion. People v. Spatarella, 1974, 34 N.Y.2d 157, 356 N.Y.S.2d566, 313 N.E.2d 38. Extortion 11

Obtaining money from an individual who is an officer of a corporation, with his consent induced by wrongfuluse of fear, is a crime, regardless of whether the money is the property of individual or of corporation andwhether the threat is unlawful to injure the property of the individual or the property of the corporation. Peoplev. Lamm, 1944, 292 N.Y. 224, 54 N.E.2d 374. Extortion 10; Extortion 11

An essential element of the crime here defined is the intent to extort or gain money or property. People v. Ryan,1921, 232 N.Y. 234, 133 N.E. 572.

Even if property extorted consisted of forced loans to defendant rather than money demanded outright, recordcontained sufficient evidence, including checks, bank records and complainant's testimony, to support larcenyconviction. People v. Angus (3 Dept. 1981) 81 A.D.2d 971, 439 N.Y.S.2d 747, affirmed 56 N.Y.2d 549, 449N.Y.S.2d 966, 434 N.E.2d 1344. Larceny 55

“Property” elements of crime of extortion cannot be considered separately from element which requires thatthere be a “wrongful use of force or fear” by threat “to do an unlawful injury.” People v. Squillante, 1959, 18Misc.2d 561, 185 N.Y.S.2d 357. Extortion 10; Extortion 11

The voluntary repayment by an employee of part of his wages to his employer on the latter's threat to dischargethe employee, does not constitute extortion where the complainant had no property right to be retained as an em-ployee of the defendant, there was consequently no property to unlawfully injure. People v. Cuddihy, 1934, 151Misc. 318, 271 N.Y.S. 450, affirmed 243 A.D. 694, 277 N.Y.S. 960.

It is immaterial whether the property obtained belonged to the individual threatened, or to a copartnership ofwhich he is a member, and a threat to injury the business of a copartnership, made to one member thereof, willsustain a prosecution for extortion. People v. Lee, 1911, 70 Misc. 446, 129 N.Y.S. 185.



49. ---- Time of consummation, extortion

Payment and receipt of money fixes date of consummated crime of extortion, since “extortion” is the unlawfulobtaining of money from another. People v. Parkinson, 1943, 181 Misc. 603, 41 N.Y.S.2d 331. Criminal Law

149

50. ---- Private right of action, extortion

Defendant who was allegedly involved in scheme to extort money from utility company by threatening to makepublic a scandalous rumor concerning one of utility's executives did not through his conduct carry the projectforward within dangerous proximity of the criminal end to be attained, and thus, could not be held liable to util-ity in private action based on attempted extortion, even assuming such a cause of action existed, where defend-ant did not communicate alleged extortionate statements to anyone but his attorneys. Niagara Mohawk PowerCorp. v. Testone (4 Dept. 2000) 272 A.D.2d 910, 708 N.Y.S.2d 527. Torts 436

Conduct of defendants in allegedly attempting to extort money from utility company by threatening to makepublic a scandalous rumor concerning one of utility's executives, in violation of penal statutes, did not give riseto implied private right of action by utility. Niagara Mohawk Power Corp. v. Testone (4 Dept. 2000) 272 A.D.2d910, 708 N.Y.S.2d 527. Action 5

51. ---- Inchoate extortion offenses

Although victim was not owner of a gambling business, he could be victim of an inchoate extortion offense un-der New York law where defendants thought he was owner. U.S. v. Ivezaj, C.A.2 (N.Y.)2009, 568 F.3d 88, foradditional opinion, see 336 Fed.Appx. 6, 2009 WL 1636018, post-conviction relief denied 2011 WL 6778475,subsequent determination 2012 WL 1122972, certiorari denied 130 S.Ct. 1749, 559 U.S. 998, 176 L.Ed.2d 223,certiorari denied 130 S.Ct. 1750, 559 U.S. 998, 176 L.Ed.2d 223, certiorari denied 130 S.Ct. 1751, 559 U.S. 998,176 L.Ed.2d 223. Extortion 8

52. Spouses

A married woman may appear as a complainant against her husband when he steals her money or valuables, butin such cases, guilt, including the element of intent, must be proven beyond a reasonable doubt, taking into ac-count all relevant circumstances. People v. Morton, 1954, 308 N.Y. 96, 123 N.E.2d 790. Criminal Law561(2)

53. Accessories

Testimony by general contractor's project manager that he did not know whether invoices submitted to generalcontractor were paid and that it was not his responsibility to pay subcontractors or order materials supported in-ference that he did not participate in larceny charged, and thus project manager was not an accomplice as matterof law whose testimony required corroboration in prosecution for grand and petit larceny based on violation ofLien Law in connection with alleged embezzlement of funds by defendant, as general contractor's partner andmanaging member, intended for use on commercial construction project, although project manager was granted



immunity from prosecution. People v. Melino (3 Dept. 2005) 16 A.D.3d 908, 791 N.Y.S.2d 718, leave to appealdenied 5 N.Y.3d 791, 801 N.Y.S.2d 812, 835 N.E.2d 672. Criminal Law 507(1)

There was sufficient evidence of defendant's accessorial liability to support convictions for criminal possessionof a forged instrument in the second degree and one count of attempted grand larceny in the second degree; de-fendant was present in the vehicle from which the forged instruments were recovered, he possessed bank recordslinked to the account of one of the payees of the those instruments, and his actions and statements evinced a con-sciousness of guilt. People v. Mariko (1 Dept. 1999) 267 A.D.2d 113, 700 N.Y.S.2d 435, leave to appeal denied94 N.Y.2d 950, 710 N.Y.S.2d 6, 731 N.E.2d 623. Forgery 44(.5); Larceny 66

54. Aggregation

New York permits aggregation of separate acts of wrongful taking or obtaining of property as long as the lar-ceny is held to be pursuant to a single intent, and one complete, illegal scheme; the length of the period overwhich the takings continued does not matter. People v. Gbohou, 2000, 186 Misc.2d 324, 718 N.Y.S.2d 791. Lar-ceny 6

Evidence before the grand jury was legally sufficient to support charges of second-degree grand larceny andsecond-degree criminal possession of stolen property, based on aggregation into single count of grand larceny ofalleged larcenies arising from transfers allegedly made by defendant from bank accounts of her home health carepatients, given that patients were husband and wife and funds in their individual bank accounts were held in trustfor the other, and given evidence suggesting that alleged larcenies were committed pursuant to single schemecarried out through pattern of financial transactions. People v. Gbohou, 2000, 186 Misc.2d 324, 718 N.Y.S.2d791. Indictment And Information 10.2(8); Indictment And Information 10.2(11)

Principles underlying the aggregation doctrine permit aggregation when larcenies from different victims do notoccur at a single place and time, but the separate victims are sufficiently related to each other and to the proper-ties taken as to be considered, in the eyes of the law, a single victim. People v. Gbohou, 2000, 186 Misc.2d 324,718 N.Y.S.2d 791. Larceny 6

55. Geographical jurisdiction

Trial court had geographical jurisdiction over criminal prosecution for grand larceny in the second and third de-grees and scheme to defraud in the first degree; bank account in which defendant deposited money taken fromvictims was in that county, and defendant met some of the victims in their homes within that county. People v.DeDeo (3 Dept. 2009) 59 A.D.3d 846, 874 N.Y.S.2d 291, leave to appeal denied 12 N.Y.3d 782, 879 N.Y.S.2d59, 906 N.E.2d 1093, reconsideration denied 12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076, habeas cor-pus denied 2010 WL 4553436. Criminal Law 97(.5)

Kings County had geographical jurisdiction to prosecute state assemblyman for grand larceny in third degreeand offering false instrument for filing in first degree in connection with his submission of travel vouchers seek-ing reimbursement of expenses in traveling by his personal vehicle between Kings County and Albany County,



even though assemblyman completed and signed vouchers in Albany, filed them with Assembly, received pay-ment pursuant to them in Albany, and deposited proceeds in his Albany bank account, where assemblyman hadallegedly received reimbursement for his travel expenses from Kings County political committee, and had pur-chased gasoline and paid for services to his car in Kings County. Norman v. Hynes (2 Dept. 2005) 20 A.D.3d125, 799 N.Y.S.2d 222, leave to appeal denied 6 N.Y.3d 706, 812 N.Y.S.2d 35, 845 N.E.2d 467. Criminal Law

108(1)

56. Assistance of counsel

Defense counsel's conduct in arguing in summation, in prosecution for grand larceny in the third degree, thatcritical time for purposes of defendant's intent was when he made personal purchases with company credit card,without also addressing issue of whether defendant later formed intent to withhold payment, was reasonable trialstrategy, and thus was not ineffective assistance; there was little evidence of defendant's larcenous intent at timeof purchases, but overwhelming evidence of his later attempt to avoid payments. People v. Figueroa (1 Dept.2009) 63 A.D.3d 491, 880 N.Y.S.2d 631, leave to appeal denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d1016, habeas corpus denied 2013 WL 3486925. Criminal Law 1942

Even if defense counsel neglected to tell defendant, prior to entering into settlement agreement with company,that prosecution could go forward on charge of grand larceny in the third degree stemming from defendant's im-proper use of company credit card even if defendant signed agreement, that alleged failure did not cause defend-ant any prejudice or deprive him of fair trial, as would support claim for ineffective assistance; if defendant hadnot signed agreement, prosecution would still have gone forward, and statements in agreement were not prejudi-cial, in light of disclaimers in agreement and overwhelming evidence of guilt. People v. Figueroa (1 Dept. 2009)63 A.D.3d 491, 880 N.Y.S.2d 631, leave to appeal denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016,habeas corpus denied 2013 WL 3486925. Criminal Law 1890

Fact that some statements in settlement agreement entered into between company and defendant were usedagainst defendant in cross-examination, in prosecution for grand larceny in the third degree relating to defend-ant's improper use of company credit card, did not establish that defense counsel's strategy in advising defendantto sign agreement was unreasonable or that defendant was prejudiced by it, as would support ineffective assist-ance claim; as jury was made aware, agreement also contained clause stating that defendant denied all liabilityand that nothing in agreement should be construed as admission of liability, and defendant testified that hesigned agreement because he simply wanted to resolve dispute with company. People v. Figueroa (1 Dept. 2009)63 A.D.3d 491, 880 N.Y.S.2d 631, leave to appeal denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016,habeas corpus denied 2013 WL 3486925. Criminal Law 1890

Fact that defense counsel's strategy of advising defendant, who was charged with grand larceny in the third de-gree stemming from his improper use of company credit card, to sign settlement agreement with company,which included company's agreement to ask District Attorney's Office to discontinue prosecution, ultimatelyproved unsuccessful did not render counsel's assistance ineffective. People v. Figueroa (1 Dept. 2009) 63A.D.3d 491, 880 N.Y.S.2d 631, leave to appeal denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016,habeas corpus denied 2013 WL 3486925. Criminal Law 1890



Defense counsel's advising defendant, who was charged with grand larceny in the third degree stemming fromhis improper use of company credit card, to sign settlement agreement with company, which included company'sagreement to ask District Attorney's Office to discontinue prosecution, was reasonable strategic decision inwhich counsel sought to forestall prosecution, and thus could not amount to ineffective assistance. People v.Figueroa (1 Dept. 2009) 63 A.D.3d 491, 880 N.Y.S.2d 631, leave to appeal denied 13 N.Y.3d 744, 886 N.Y.S.2d98, 914 N.E.2d 1016, habeas corpus denied 2013 WL 3486925. Criminal Law 1890

56.5. Pleadings

Allegations that defendant, who served as outside counsel for New York City Transit Authority (NYCTA) withrespect to personal injury claims against NYCTA, fraudulently induced NYCTA to enter into a contract by usingfictitious name for his company in order to obtain paid assignments from NYCTA to procure independent med-ical examinations (IME) of personal injury claimants who had sued NYCTA, were insufficient to support indict-ment for grand larceny, in absence of allegations of injury or loss to NYCTA from which defendant's intent todeprive NYCTA of property could be inferred, or that injury to NYCTA was a reasonably probable result of de-fendant's use of fictitious name. People v. Headley, 2012, 37 Misc.3d 815, 951 N.Y.S.2d 317, opinion adheredto on reargument 36 Misc.3d 1240(A), 960 N.Y.S.2d 51. False Pretenses 36

57. Indictment

Indictment alleging that defendants, who were members of union local, harassed construction contractors, usingactual and threatened violence and property damage, aimed at coercing them into entering into agreements tohire members of the local, sufficiently stated violations of New York extortion law, as predicate crimes for eachof the alleged acts of racketeering under Racketeer Influenced and Corrupt Organizations Act (RICO); the de-fendant's alleged conduct was completely unrelated to a strike or other bona fide employer-union dispute. U.S.v. Larson, 2011, 807 F.Supp.2d 142. Extortion 33

Indictment charging defendant with attempted grand larceny, forgery, and criminal possession of a forged instru-ment, premised on theory that defendant allegedly offered a price of $401,000 to purchase real property whichthe complainant did not want to sell, then tricked complainant into signing a document which she did not realizewas a contract sale at the price of $265,000, was legally insufficient, absent competent proof that the propertyhad an actually market value of $401,000, and that defendant signed the complainant's name or altered the con-tract of sale. People v. Goldstein (2 Dept. 2010) 73 A.D.3d 946, 900 N.Y.S.2d 440. Indictment and Information

10.2(8); Indictment and Information 10.2(11)

The People did not impermissibly change the theory of their case in prosecution for larceny by false promise inconnection with defendant's receipt of money to perform repair work on church, which he never performed; al-though prosecutor mentioned in summation defendant's promise to use money from church to pay for materials,throughout the trial, the People submitted evidence that defendant promised to perform repair work and receiveda sum of money based on that promise, neither the indictment nor the bill of particulars specified any particularpromise upon which the prosecution was based, and defendant received the requisite fair notice of the accusa-tions against him. People v. Abeel (4 Dept. 2009) 67 A.D.3d 1408, 888 N.Y.S.2d 696. False Pretenses 38



State was entitled to amend bill of particulars to clarify that victims named in counts of indictment charging de-fendant with grand larceny were not only victims of count relating to charge of scheme to defraud; fact thatamendment added more victims to alleged scheme to defraud and expanded duration of scheme did not changetheory of case and, thus, did not result in constructive amendment to indictment, any claim of prejudice to de-fendant was belied by fact that, when faced with proposition that trial court would allow state to present addi-tional witnesses, defendant declined offer of additional time to prepare for trial, and there was no evidence ofbad faith on part of prosecutor. People v. DeDeo (3 Dept. 2009) 59 A.D.3d 846, 874 N.Y.S.2d 291, leave to ap-peal denied 12 N.Y.3d 782, 879 N.Y.S.2d 59, 906 N.E.2d 1093, reconsideration denied 12 N.Y.3d 914, 884N.Y.S.2d 695, 912 N.E.2d 1076, habeas corpus denied 2010 WL 4553436. Indictment And Information121.4

Allegations in indictment were insufficient to establish every element of the crime of petit larceny, thus requir-ing dismissal, where indictment alleged only that defendants had opened a cellular telephone account in a falsename, but failed to allege any deprivation of any money, property or thing of value; there were no allegationsthat defendants had placed even a single telephone call using the fraudulently opened account, or that a singlecharge had been incurred. People v. Debranche, 2012, 38 Misc.3d 872, 954 N.Y.S.2d 862. Larceny 28(1)

58. Lesser included offenses

Evidence did not warrant submission of petit larceny as a lesser included offense of grand larceny, despite de-fendant's claim that he picked up the victim's wallet and fled with it after an unidentified person stole the walletand dropped or discarded it, and despite the victim's inability to identify the thief, or to accurately describe himat trial; the fast-paced chain of events, with particular reference to the fact that immediately after the theft a wit-ness saw defendant fleeing from the pursuing victim and holding the wallet, placed defendant's theory outsidethe realm of reasonable possibility. People v. Harris (1 Dept. 2009) 67 A.D.3d 612, 889 N.Y.S.2d 567. CriminalLaw 795(2.40)

Defendant was not entitled to have petit larceny submitted as lesser included offense of second-degree robbery;evidence established that, immediately after defendant and his accomplices pushed and shoved victim, accom-plices surrounded victim and prevented his departure at same time that defendant “asked” victim for money,which victim surrendered to defendant, such that defendant either committed a forcible stealing of victim'smoney, or he did not “wrongfully take, obtain, or withhold” victim's money. People v. Flores (1 Dept. 2006) 28A.D.3d 380, 812 N.Y.S.2d 534, leave to appeal denied 7 N.Y.3d 755, 819 N.Y.S.2d 881, 853 N.E.2d 252. Crim-inal Law 795(2.75)

Unauthorized use of a vehicle is not lesser included offense of larceny and stolen property crimes that do not, inthe abstract, rather than under the particular facts, necessarily involve vehicles. In re Raul M. (1 Dept. 1998) 248A.D.2d 336, 670 N.Y.S.2d 830. Indictment And Information 191(5)

After finding on appeal of juvenile delinquency determination that evidence did not support alleged crimes offourth-degree grand larceny or criminal possession of stolen property, fact-finding determination could not bemodified to allege unauthorized use of a vehicle in the third degree, as such crime was not lesser included of-fense of grand larceny or criminal possession of stolen property. In re Raul M. (1 Dept. 1998) 248 A.D.2d 336,



670 N.Y.S.2d 830. Indictment And Information 191(.5); Infants 2943

Unauthorized use of a vehicle is not lesser included offense of larceny and stolen property crimes that do not, inthe abstract, rather than under the particular facts, necessarily involve vehicles. In re Raul M. (1 Dept. 1998) 248A.D.2d 336, 670 N.Y.S.2d 830. Indictment And Information 191(5)

After finding on appeal of juvenile delinquency determination that evidence did not support alleged crimes offourth-degree grand larceny or criminal possession of stolen property, fact-finding determination could not bemodified to allege unauthorized use of a vehicle in the third degree, as such crime was not lesser included of-fense of grand larceny or criminal possession of stolen property. In re Raul M. (1 Dept. 1998) 248 A.D.2d 336,670 N.Y.S.2d 830. Indictment And Information 191(.5); Infants 2943

Criminal possession of stolen property is not a lesser included offense of larceny. People v. Robinson (4 Dept.1982) 90 A.D.2d 249, 457 N.Y.S.2d 347, affirmed 60 N.Y.2d 982, 471 N.Y.S.2d 258, 459 N.E.2d 483. See,also, In re F, 1972, 68 Misc.2d 718, 328 N.Y.S.2d 99. Indictment And Information 191(5)

“Larceny” is the actual taking of property with a felonious intent and the crime is not complete until such pos-session is acquired, and one who criminally “receives stolen property” also acquires possession, but larceny andcriminally receiving property are distinct and separate crimes and a larcenist cannot also criminally receive thesame property. People v. Bigley, 1942, 178 Misc. 552, 35 N.Y.S.2d 130. Larceny 1; Receiving StolenGoods 6

59. Jury selection

Trial court elicited sufficiently “unequivocal assurance” that juror, who initially indicated to defense counselthat he thought defendant would not have been indicted unless he was guilty, could uphold presumption of inno-cence and judge facts in fair and impartial manner, and thus defendant was not entitled to remove that juror forcause, in prosecution for grand larceny and scheme to defraud. People v. DeDeo (3 Dept. 2009) 59 A.D.3d 846,874 N.Y.S.2d 291, leave to appeal denied 12 N.Y.3d 782, 879 N.Y.S.2d 59, 906 N.E.2d 1093, reconsiderationdenied 12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076, habeas corpus denied 2010 WL 4553436. Jury107

60. Admissibility of evidence

Testimony of Masonic lodge member that it was common practice in area for Masons to not strictly adhere toMasonic rules, that lodge had sufficient money, and that money defendant, who was master of lodge, withdrewto pay his delinquent property taxes would not put lodge at financial risk was irrelevant, and thus inadmissible,in defendant's prosecution for grand larceny in the third degree. People v. Brown (3 Dept. 2013) 107 A.D.3d1145, 967 N.Y.S.2d 206. Larceny 43

Evidence that defendant, who was master of Masonic lodge, allegedly discussed with witness concept of creat-ing camp for children and investigating sources of financing was not relevant as proof of defendant's intent at



time he withdrew money from lodge's bank account to pay his delinquent real estate taxes, and thus was inad-missible in prosecution for grand larceny in the third degree. People v. Brown (3 Dept. 2013) 107 A.D.3d 1145,967 N.Y.S.2d 206. Larceny 44

Evidence that defendant, who was master of Masonic lodge, had fellow lodge members write checks on lodge'saccount on five separate occasions for substantial amounts without any alleged “handshake deals” and withoutobtaining member approval through procedure required under lodge's rules, as well as testimony of defendant'sbrother that defendant gave him two checks from lodge account for purpose of paying brother's back taxes andmortgage, despite those expenditures not being discussed at formal meeting, was admissible, in prosecution forgrand larceny in the third degree; considering defense that defendant was authorized to obtain bank check,which he used to pay his delinquent property taxes, in exchange for oral lease on his property to be used bylodge members or as camp for children, proffered evidence could assist jury in determining defendant's intent,was probative and relevant to show absence of mistake by defendant regarding check, and was not unduly preju-dicial. People v. Brown (3 Dept. 2013) 107 A.D.3d 1145, 967 N.Y.S.2d 206. Larceny 44

In prosecution for first-degree grand larceny from a securities fund and conspiracy in the fourth degree, probat-ive value of evidence relating to defendant's coconspirator's dealings with woman who was swindled out of$200,000, and of evidence of coconspirator's efforts to obtain a $1,000,000 loan to be collateralized by propertythat defendant knew had been appraised at $150,000, was not outweighed any prejudicial effect; the evidencewas highly relevant to the critical issue of the extent of defendant's knowledge of coconspirator's actual financialsituation, and prejudicial effect was minimized by the court's clear and repeated instructions to the jury explain-ing the proper use of the evidence. People v. Conroy (1 Dept. 2008) 53 A.D.3d 438, 861 N.Y.S.2d 46, leave toappeal denied 11 N.Y.3d 735, 864 N.Y.S.2d 394, 894 N.E.2d 658, certiorari denied 129 S.Ct. 579, 555 U.S.1013, 172 L.Ed.2d 432. Criminal Law 338(7); Criminal Law 422(1)

61. Defenses, generally

County court had no duty to further inquire into whether defendant had considered a potential intoxication de-fense when he pled guilty to grand larceny in the fourth degree, where defendant did not, at any time during theplea allocution, claim that his intoxication prevented him from remembering his participation in the crime.People v. Jones (3 Dept. 2010) 73 A.D.3d 1386, 900 N.Y.S.2d 797. Criminal Law 273(4.1)

Fact that defendant's promise to marry victim was unenforceable as matter of contract law was not defense tocharge of grand larceny by false promise. People v. Collins (4 Dept. 2000) 273 A.D.2d 802, 710 N.Y.S.2d 216,leave to appeal denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145. Larceny 26

Fact that defendant's promise to marry victim was incapable of immediate fulfillment was not a defense to grandlarceny, as gravamen of offense was false promise to perform an act in future. People v. Collins (4 Dept. 2000)273 A.D.2d 802, 710 N.Y.S.2d 216, leave to appeal denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145.Larceny 26



Concept of reasonable reliance is not found in the larceny statute. People v. Collins (4 Dept. 2000) 273 A.D.2d802, 710 N.Y.S.2d 216, leave to appeal denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145. Larceny

1

When Bronston defense is raised to charge which involves making of false statement, asserting that challengedstatement was literally true when made, either in a case involving live testimony or a document, court is oblig-ated to examine not only the literal truth or falsity of defendant's words, but also the context in which thesewords were spoken. People v. Norman, 2004, 6 Misc.3d 317, 789 N.Y.S.2d 613. Perjury 15

In assessing petitioner's claim that trial judge's refusal to clarify, in response to jury's question, that petitionercould not be convicted of robbery if it believed that he was trying to reclaim his own stolen money violated hisdue process rights, district court was required to determine whether jury would have also convicted petitioner ofburglary, where petitioner had been found guilty of robbery and burglary, but acquitted of larceny, his sentenceswere to run concurrently, and it was not clear that jury believed petitioner entered dwelling to commit crime oth-er than robbery. Suarez v. Bennett, C.A.2 (N.Y.)2006, 171 Fed.Appx. 361, 2006 WL 558702, Unreported, opin-ion after remand 207 Fed.Appx. 114, 2006 WL 3510628, certiorari denied 127 S.Ct. 2919, 551 U.S. 1106, 168L.Ed.2d 250. Habeas Corpus 499

62. Sufficiency of evidence--In general

Evidence was sufficient to support defendant's conviction for grand larceny in the fourth degree and fraudulentaccosting for participating in a scheme in which her son poured coffee under a car parked in a store parking lot,and when the elderly driver returned defendant approached the driver, stated that something was leaking underher car, and that her son could repair it; driver was deprived of more than $1,000 for fraudulent repairs, defend-ant admitted that she saw her son pour coffee under the lady's car and approached her, and defendant accompan-ied her son to the victim's home and to the bank the following day, at which times the actual transfer of fundstook place. People v. Abbott (3 Dept. 2013) 107 A.D.3d 1152, 967 N.Y.S.2d 227. False Pretenses 49(1)

Verdict convicting defendant of grand larceny in the second degree was not against the weight of the evidence;defendant, who was hired to manage company's finances, charged approximately $80,000 in personal expensesand cash advances to the company's credit card, accrued $21,000 in personal gasoline expenses and nearly$6,000 in personal telephone expenses that she paid with company funds, and unilaterally increased her salaryfrom $35,000 to $61,000, company owner testified that company credit cards were to be used for business pur-poses only, defendant's testimony that she intended to repay her employer was belied by the fact that she madeno payments between the time of her termination and the trial and that a few days after the discovery of her ex-penditures, she was found shredding financial documents in her office, and accountant testified that defendant'slisting over $95,000 as debt owed by her in company's books as accounts receivable may have been an effort tohide the funds as legitimate business expenses. People v. Farnsworth (3 Dept. 2013) 103 A.D.3d 982, 960N.Y.S.2d 246. Larceny 55

There was legally sufficient evidence establishing that defendants stole property from store, where Peoplepresented evidence establishing that defendants removed hangers and store security sensors from unknown num-ber of items and then concealed items, and that certain items were removed from store. People v. Pallagi (4



Dept. 2012) 91 A.D.3d 1266, 937 N.Y.S.2d 486, appeal withdrawn 19 N.Y.3d 970, 950 N.Y.S.2d 352, 973N.E.2d 762. Larceny 55

There was insufficient evidence that value of property stolen by defendants exceeded $1,000, as required to sup-port their grand larceny convictions, even though store loss prevention officer testified that total value of prop-erty taken was $2,200, where officer testified that three specific missing items were valued at $49.99, $128, and$108, and inferred that other property was taken based on review of grainy stop-action video recording of de-fendants' movement in store, but she admitted that she could not clearly ascertain items that were taken, Peoplefailed to establish that items that officer testified that defendants had taken to dressing room area were not sameas items found in area, and only evidence of items' value was officer's unsupported estimate of their minimumsale price. People v. Pallagi (4 Dept. 2012) 91 A.D.3d 1266, 937 N.Y.S.2d 486, appeal withdrawn 19 N.Y.3d970, 950 N.Y.S.2d 352, 973 N.E.2d 762. Larceny 59

Verdict finding defendant guilty of grand larceny in the second and third degrees and scheme to defraud in thefirst degree was not contrary to weight of credible evidence; defendant's son testified that he and defendant soli-cited customers from mailing lists of people over age of 45 or 50, and that defendant had established bank ac-counts in son's name in order to avoid certain tax problems, clients testified that, after being solicited by defend-ant, they liquidated assets, invested proceeds with defendant in exchange for his promise of a certain rate of re-turn and never recouped what they were promised, and evidence demonstrated that defendant repeatedly failedto respond to requests for return of investment principal and would provide empty assurances in order to staveoff investors and secure more “investments” from them. People v. DeDeo (3 Dept. 2009) 59 A.D.3d 846, 874N.Y.S.2d 291, leave to appeal denied 12 N.Y.3d 782, 879 N.Y.S.2d 59, 906 N.E.2d 1093, reconsideration denied12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076, habeas corpus denied 2010 WL 4553436. False Pretenses

49(1); Larceny 55

The evidence was sufficient to support defendant's conviction for grand larceny in the third degree; evidence es-tablished that defendant agreed to permit a car to be stored on his property, and that he also agreed that he wouldhave no authority to move the car, and that the owner's sister would be contacted to move the car if necessary,and defendant admitted to the investigating officer that he got rid of the car by giving it to an accomplice.People v. Merante (1 Dept. 2009) 59 A.D.3d 207, 873 N.Y.S.2d 55, leave to appeal denied 12 N.Y.3d 856, 881N.Y.S.2d 668, 909 N.E.2d 591. Larceny 55

Evidence that defendant shared associate's larcenous intent and aided him in commission of larceny from secur-ities fund was sufficient to support conviction for first-degree grand larceny by false pretenses; there was evid-ence from which jury reasonably could have concluded that defendant knew associate was virtually impecuniousswindler, rather than the billionaire he professed to be, and that defendant knew associate was seeking to steal$5 million from fund by falsely representing that collateral he offered to back $120 million guarantee of fund'sobligations was worth much less than he assured fund's manager it was worth, and that defendant made falserepresentations to owner of collateral property to advance associate's scheme. People v. Conroy (1 Dept. 2008)53 A.D.3d 438, 861 N.Y.S.2d 46, leave to appeal denied 11 N.Y.3d 735, 864 N.Y.S.2d 394, 894 N.E.2d 658,certiorari denied 129 S.Ct. 579, 555 U.S. 1013, 172 L.Ed.2d 432. False Pretenses 49(2)



Codefendant's testimony that after discovering victim dead in his home, defendant took five guns and a ridinglawnmower from victim's home and placed them in codefendant's truck, and testimony of appraiser that ridinglawn mower had appraisal value of $1,825, was sufficient to support defendant's convictions for grand larceny inthe fourth degree. People v. Mallia (3 Dept. 2008) 52 A.D.3d 964, 860 N.Y.S.2d 257. Criminal Law 508(9)

63. ---- Intent to deprive or appropriate

Alleged violation by health care provider of Medicaid regulation in which Department of Social Services set re-imbursement rates for providers of personal care services could not, standing alone, support criminal prosecu-tion for grand larceny and offering false instruments for filing, and prosecution was additionally required toshow a knowing attempt to deceive or defraud. Ulster Home Care, Inc. v. Vacco, 2001, 96 N.Y.2d 505, 731N.Y.S.2d 910, 757 N.E.2d 764, certiorari denied 122 S.Ct. 664, 534 U.S. 1065, 151 L.Ed.2d 579. Fraud68.10(2); Larceny 3(4)

Action of officers of courier firm in removing money from bank's “rolling inventory” of coins and dollar billsand placing it in courier firm's compensatory balance account with the bank did not constitute larceny as, al-though they may have exercised dominion and control over the money in a manner that was inconsistent withthe bank's ownership, there could be no inference of larcenous intent as they did not intend to permanently de-prive the bank of the money. People v. Jennings, 1986, 69 N.Y.2d 103, 512 N.Y.S.2d 652, 504 N.E.2d 1079.Larceny 3(4)

Evidence was legally sufficient to establish defendant's larcenous intent, as supported his conviction for grandlarceny in the third degree; while defendant was master of Masonic lodge, and his father was treasurer, defend-ant withdrew $40,000 from lodge's bank account, which included bank check used by defendant to pay his delin-quent real estate taxes and check defendant wrote to himself, and although defendant testified that he receivedcheck for reimbursement and bank check was in exchange for five-year lease on his property to be used by lodgemembers or as camp for children, other members testified that they were not aware of any lease or payment todefendant, and those topics were never discussed or voted on at formal meeting as required by organization'srules. People v. Brown (3 Dept. 2013) 107 A.D.3d 1145, 967 N.Y.S.2d 206. Larceny 57

Verdict of guilt, in prosecution for second-degree grand larceny, was not against weight of the evidence; evid-ence established that defendant acted with intent to deprive his former wife and her medical practice of variouschecks, or to appropriate the same to himself, when he wrongfully took, obtained, or withheld those checks.People v. Kutsy (2 Dept. 2013) 105 A.D.3d 975, 962 N.Y.S.2d 712. Larceny 57

Defendant's statement to police, acknowledging that he and his codefendants knocked victim to the ground, andthat he stole victim's cell phone and codefendants took victim's gun constituted legally sufficient evidence ofrobbery, supporting defendant's conviction. People v. Curry (3 Dept. 2011) 85 A.D.3d 1209, 924 N.Y.S.2d 217,leave to appeal denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94. Robbery 24.10

Evidence, that defendant acquired victim's lost purse and credit cards and had no intention of making any effortto return them, but intended to use the credit cards to benefit himself, was sufficient to support conviction for,



inter alia, fourth-degree criminal possession of stolen property; there was no basis for disturbing jury's determin-ations concerning credibility, and codefendant's testimony was thoroughly corroborated by police observations.People v. Guarino (1 Dept. 2008) 55 A.D.3d 473, 867 N.Y.S.2d 52, leave to appeal denied 11 N.Y.3d 925, 874N.Y.S.2d 10, 902 N.E.2d 444. Receiving Stolen Goods 8(3)

Defendant's conviction for petit larceny was against the weight of the evidence; while weight of evidence estab-lished that defendant removed some of his girlfriend's belongings from apartment where defendant had been liv-ing with his girlfriend, it also established that he voluntarily returned those belongings to his girlfriend within ashort time thereafter, and therefore evidence weighed heavily in favor of finding that defendant did not intend towithhold the property from her permanently. People v. Camelo (4 Dept. 2008) 48 A.D.3d 1303, 852 N.Y.S.2d533. Larceny 57

Because defendant had been made joint owner of bank accounts with her elderly grandmother, she could not beconvicted of grand larceny in second degree based upon proof of her unauthorized withdrawal and use of fundsfrom accounts, nor was there evidence that defendant made any false representation or statement of prior or ex-isting fact upon which grandmother relied, as required to support conviction on theory that larceny was in fraud-ulently creating the joint accounts. People v. Vandermuelen (3 Dept. 2007) 42 A.D.3d 667, 839 N.Y.S.2d 835,leave to appeal denied 9 N.Y.3d 965, 848 N.Y.S.2d 33, 878 N.E.2d 617. Larceny 7; Larceny 27

Evidence that defendant threw stolen bag in lost and found bin and that, when police initially questioned himshortly after incident, defendant lied and disavowed any knowledge of bag was sufficient to support finding ofintent required for convictions of fourth-degree grand larceny and petit larceny, despite defendant's testimonythat he took bag believing that it belonged to a friend's girlfriend and that he was helping to return it to the own-er. People v. Russell (3 Dept. 2007) 41 A.D.3d 1094, 838 N.Y.S.2d 710, leave to appeal denied 10 N.Y.3d 964,863 N.Y.S.2d 148, 893 N.E.2d 454. Larceny 57

In prosecution for grand larceny, by inducing department store employees to give defendant cash for “return” oftwo men's suits and bathrobe that had not been bought at store, defendant's knowledge that items had not beenpurchased from store was established by employees' testimony that tags identifying brand names had been re-moved from the merchandise and that price tags stapled on merchandise were attached in manner different frommanner in which store's price tags were usually attached. People v. Williams (4 Dept. 2007) 38 A.D.3d 1301,832 N.Y.S.2d 364. False Pretenses 49(4)

Accomplice testimony that defendant was aware that paycheck he cashed for her did not bear her name and wasstolen was sufficiently corroborated to support convictions of second-degree criminal possession of a forged in-strument and petit larceny; bank teller confirmed circumstances of transaction as described by accomplice, com-menting that she remembered that defendant and accomplice seemed like they knew each other fairly well, andconfirming, after viewing surveillance photos, that defendant was wearing glasses at time of transaction, andprosecution witness testified that she knew defendant from living in same building, saw defendant and accom-plice together every day, and that accomplice had, at one time, been living with defendant. People v. Allen (3Dept. 2006) 30 A.D.3d 825, 817 N.Y.S.2d 439. Criminal Law 511.1(6.1); Criminal Law 511.1(9)



Juvenile's intentional act of ripping police officer's shield from her jacket during altercation, and attempt to dothe same with respect to another officer, was insufficient to support finding, at juvenile delinquency proceeding,that juvenile committed acts which, if committed by an adult, would constitute crimes of third-degree robbery,fourth-degree grand larceny, and fifth-degree criminal possession of stolen property, absent evidence of intent todispose of such property under circumstances which would render it unlikely that the owner would recover it. Inre Ashley M. (1 Dept. 2006) 30 A.D.3d 178, 817 N.Y.S.2d 15. Infants 2472; Infants 2480

Evidence supported finding that defendant acted with larcenous intent required for conviction of fourth-degreegrand larceny when he acquired two strangers' paychecks, deposited them into his account, and quickly with-drew the funds. People v. Lane (1 Dept. 2006) 25 A.D.3d 517, 808 N.Y.S.2d 225, leave to appeal granted 6N.Y.3d 896, 817 N.Y.S.2d 631, 850 N.E.2d 678, affirmed 7 N.Y.3d 888, 826 N.Y.S.2d 599, 860 N.E.2d 61. Lar-ceny 57

There was sufficient evidence of general contractor's larcenous intent and intent to defraud in diverting LienLaw trust funds to unrelated projects, despite contractor's claim that he believed that subcontractors would bepaid once he received compensation on the other projects. People v. Miller (3 Dept. 2005) 23 A.D.3d 699, 803N.Y.S.2d 734, leave to appeal denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286. False Pretenses49(1); Larceny 57

Evidence that defendant, a general partner and managing member of general contractor, deposited checks fromproperty owner into contractor's commercial account, was the only person aware of the balance in said account,and used money from account to pay for unrelated business expenses was sufficient to support finding of intentrequired for conviction of grand larceny based on violation of Lien Law in connection with defendant's allegedembezzlement of funds intended for use on commercial construction project. People v. Melino (3 Dept. 2005) 16A.D.3d 908, 791 N.Y.S.2d 718, leave to appeal denied 5 N.Y.3d 791, 801 N.Y.S.2d 812, 835 N.E.2d 672. Em-bezzlement 44(2)

Proof that defendant told two motorists that he would make driving while intoxicated charges “disappear” in re-turn for payment of fee, allowed for inference that defendant had fraudulent intent required to convict forscheme to defraud in first degree and grand larceny in fourth degree. People v. Bastian (4 Dept. 2002) 294A.D.2d 882, 743 N.Y.S.2d 217, leave to appeal denied 98 N.Y.2d 694, 747 N.Y.S.2d 412, 776 N.E.2d 1. FalsePretenses 39; Larceny 41

Momentary nature of defendant's interrupted taking of an automobile did not preclude finding of larcenous in-tent. People v. Brenia (1 Dept. 2000) 277 A.D.2d 17, 715 N.Y.S.2d 54, leave to appeal denied 96 N.Y.2d 732,722 N.Y.S.2d 799, 745 N.E.2d 1022. Larceny 3(1)

Evidence of defendant's conduct and of surrounding circumstances was sufficient to support inference of lar-cenous intent; defendant surreptitiously entered car whose engine was running, released emergency brake andoperated gearshift lever, stepped on accelerator pedal even after complainant had jumped onto hood of car, andfled scene when another vehicle blocked car from moving. People v. Brenia (1 Dept. 2000) 277 A.D.2d 17, 715N.Y.S.2d 54, leave to appeal denied 96 N.Y.2d 732, 722 N.Y.S.2d 799, 745 N.E.2d 1022. Larceny 57



Evidence that juvenile and her sister were involved in altercation with another juvenile, and that juvenilepunched, kicked, and hit that other juvenile, did not permit inference that juvenile shared her sister's larcenousintent, in absence of any evidence that juvenile participated in subsequent robbery or was even aware that it tookplace, and was therefore insufficient to support juvenile's adjudication as delinquent on basis of her commissionof acts amounting to numerous property crimes. In re Bianca W. (2 Dept. 1999) 267 A.D.2d 463, 700 N.Y.S.2d497. Infants 2641(3)

Evidence that defendants had been involved in scheme to import motor fuel into State without filing reports orpaying taxes required by Tax Law was sufficient to establish prima facie case that defendants had withheldproperty from its rightful owner, i.e., the State, and thus to support indictment on charges of conspiracy in theforth degree and larceny in the first degree. People v. Nappo (2 Dept. 1999) 261 A.D.2d 558, 690 N.Y.S.2d 649,leave to appeal granted 93 N.Y.2d 1023, 697 N.Y.S.2d 582, 719 N.E.2d 943, leave to appeal granted 93 N.Y.2d1026, 697 N.Y.S.2d 585, 719 N.E.2d 946, reversed in part 94 N.Y.2d 564, 708 N.Y.S.2d 41, 729 N.E.2d 698. In-dictment And Information 10.2(10); Indictment And Information 10.2(11)

Defendant acted with intent to defraud, as required to support convictions on multiple counts of grand larceny inconnection with sale of financial plans; defendant trained and supervised corporate defendant's sales representat-ives, determined what information was included in client files, aided company's president in investment de-cision-making process, and assisted during sales meetings at which representatives were instructed to evade in-vestors' questions regarding commissions. People v. Sala (3 Dept. 1999) 258 A.D.2d 182, 695 N.Y.S.2d 169,leave to appeal granted 94 N.Y.2d 798, 700 N.Y.S.2d 431, 722 N.E.2d 511, leave to appeal granted 94 N.Y.2d799, 700 N.Y.S.2d 432, 722 N.E.2d 512, leave to appeal granted 94 N.Y.2d 925, 708 N.Y.S.2d 364, 729 N.E.2d1163, affirmed 95 N.Y.2d 254, 716 N.Y.S.2d 361, 739 N.E.2d 727. False Pretenses 49(2)

Juvenile delinquency adjudication for commission of acts which if committed by an adult would constitute thecrimes of larceny of credit card, and criminal possession of stolen property, consisting of the same credit card,was established by evidence that juvenile briefly acquired his teacher's credit card, copied number, returnedcard, and used number to make unauthorized purchase in amount of $207.19 by ostensible telephone order. In reReinaldo O. (1 Dept. 1998) 250 A.D.2d 502, 673 N.Y.S.2d 417, leave to appeal denied 92 N.Y.2d 809, 678N.Y.S.2d 595, 700 N.E.2d 1231. Larceny 55; Receiving Stolen Goods 8(3)

Allegation that defendants were harness race drivers who stole money from members of betting public whowagered on the horses they drove in fixed races was sufficient to support indictment charging defendant withgrand larceny and conspiracy to commit grand larceny; since defendants allegedly obtained property from bet-ting public based upon implied representation that they would use their best efforts to win the fixed races, whichthey allegedly had no intention of keeping, their conduct could be viewed as form of larceny. People v. Kramer(2 Dept. 1997) 244 A.D.2d 426, 664 N.Y.S.2d 81, appeal granted 91 N.Y.2d 888, 669 N.Y.S.2d 2, 691 N.E.2d1028, appeal granted 91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029, appeal granted 91 N.Y.2d 889, 669N.Y.S.2d 4, 691 N.E.2d 1030, appeal granted 91 N.Y.2d 890, 669 N.Y.S.2d 4, 691 N.E.2d 1030, reversed 92N.Y.2d 529, 683 N.Y.S.2d 743, 706 N.E.2d 731, on remand 267 A.D.2d 328, 701 N.Y.S.2d 78. Conspiracy43(6); Larceny 28(1)



Evidence presented to grand jury was legally sufficient to establish prima facie case of grand larceny and con-spiracy to commit grand larceny arising out of defendant's alleged participation in scheme to steal insurancecompany funds by authorizing payment on nonexistent claims; although evidence against defendant consistedprimarily of accomplice's testimony, sufficient corroborative evidence was presented which tended to connectdefendant to the crime. People v. Murphy (2 Dept. 1993) 198 A.D.2d 525, 604 N.Y.S.2d 211, appeal denied 83N.Y.2d 874, 613 N.Y.S.2d 135, 635 N.E.2d 304. Indictment And Information 10.2(10); Indictment And In-formation 10.2(11)

Testimony of garage attendant, that defendant was not authorized to remove cans of soda from pushcart stored ingarage, was sufficient to establish larcenous intent even though prosecution had not called owner of cart as wit-ness. People v. Polanco (1 Dept. 1991) 172 A.D.2d 276, 568 N.Y.S.2d 99, appeal denied 78 N.Y.2d 972, 574N.Y.S.2d 952, 580 N.E.2d 424. Larceny 57

Defendant's conviction for larceny based on theft of automobile was not supported by evidence that he hadstolen defendant's key ring and that, the next time the victim saw her automobile, it had been in an accident,where there was no evidence to establish that the automobile was stolen or that it was ever in defendant's posses-sion and where defendant already had possession of a set of the victim's automobile keys, thus negating any in-ference that he stole the key ring for the purpose of stealing the automobile. People v. Graves (4 Dept. 1990) 159A.D.2d 962, 552 N.Y.S.2d 777, appeal denied 76 N.Y.2d 735, 558 N.Y.S.2d 897, 557 N.E.2d 1193. Larceny

55

Evidence was sufficient to sustain convictions for burglary in the second degree, petit larceny and assault in thesecond degree; intent to commit larceny could be inferred from evidence that items were taken from residenceand from evidence of defendant's flight therefrom. People v. Brown (4 Dept. 1990) 159 A.D.2d 956, 552N.Y.S.2d 784, appeal denied 78 N.Y.2d 1009, 575 N.Y.S.2d 817, 581 N.E.2d 1063. Assault And Battery91.5(3); Burglary 41(1); Larceny 65

Defendant's convictions for larceny and receiving stolen goods were not supported by evidence that he wasfound sitting in rear seat of vehicle, behind driver's seat, in which stolen car radio was found hidden underneaththe front passenger seat in a position where it was not visible from either the driver's or passenger's side withoutlooking under the seat. People v. Carrero (2 Dept. 1989) 150 A.D.2d 384, 540 N.Y.S.2d 824. Larceny 55;Receiving Stolen Goods 8(3)

Evidence was legally sufficient to establish that defendant intended to “deprive” complainant of his cab or inten-ded to “appropriate” same to himself, within meaning of larceny statute; while defendant and his companionswere in complainant's livery cab, they announced “stick-up,” forced complainant to give up control of vehicle,pushed him out of cab, and drove away, although cab was discovered several minutes later with key in ignitionand motor running. People v. Brightly (2 Dept. 1989) 148 A.D.2d 623, 539 N.Y.S.2d 86, appeal denied 74N.Y.2d 737, 545 N.Y.S.2d 111, 543 N.E.2d 754. Larceny 57

Defendant's larcenous intent was demonstrated beyond reasonable doubt by evidence which showed that: de-fendant transferred, without authority, trust and estate assets which were under his professional control to invest-



ment companies which were under his personal control, that he derived substantial personal financial supportfrom those investment companies, that he failed to distribute trust and estate assets for months or years, that heavoided beneficiaries and their questions and demands, and that he predated promissory notes to trust and estateaccounts when scheme came to light. People v. Mishkin (2 Dept. 1987) 134 A.D.2d 529, 521 N.Y.S.2d 296, ap-peal denied 71 N.Y.2d 900, 527 N.Y.S.2d 1009, 523 N.E.2d 316. Larceny 57

Evidence that defendant took truck and was still driving it more than two hours later was sufficient to supportfinding that defendant intended to permanently deprive the truck's owner of the use of his vehicle and that de-fendant was thus guilty of grand larceny. People v. Reed (2 Dept. 1986) 124 A.D.2d 836, 508 N.Y.S.2d 555, ap-peal denied 69 N.Y.2d 749, 512 N.Y.S.2d 1053, 505 N.E.2d 252. Larceny 57

Grand jury could infer that defendant, who was state assemblyman, knew that he was making false certificationand seeking reimbursement under false pretenses when he certified on travel vouchers that he had incurred driv-ing expenses for which he was seeking reimbursement and that amount sought was “actually due and owing,”given evidence that vehicle that defendant was driving when he purportedly incurred challenged expenses wasleased for him by county political party, for which he served as executive committee chairman, that he paid ex-penses associated with driving that vehicle with credit card furnished to him by committee, and that he approvedcommittee's payment of credit card account bills which included challenged expenses, and therefore evidencebefore grand jury was legally sufficient to establish mens rea for charge that defendant committed third-degreegrand larceny. People v. Norman, 2004, 6 Misc.3d 317, 789 N.Y.S.2d 613. Indictment And Information10.2(11)

Evidence that defendant used a rented truck with concealed license plates to remove about $140,000.00 in prop-erty from his estranged wife's house following a foreclosure sale supported a grand jury indictment for third-degree burglary, second-degree grand larceny, and second-degree criminal possession of stolen property. Peoplev. Abbate, 1998, 176 Misc.2d 923, 675 N.Y.S.2d 509. Indictment And Information 10.2(8)

64. ---- False promises, sufficiency of evidence

Actions of harness racing jockey in allegedly causing bettors to be wrongfully deprived of wagered money bycausing winnings to be transferred from otherwise winning bettors, by virtue of his deliberate restraint of hishorse in order for it to lose the race, could not support conviction for larceny by false promise. People v.Kramer, 1998, 92 N.Y.2d 529, 683 N.Y.S.2d 743, 706 N.E.2d 731, on remand 267 A.D.2d 328, 701 N.Y.S.2d 78. False Pretenses 17

Evidence was sufficient to establish defendant's guilt of larceny by false promise on theory that he took moneyfrom victims at time when he had no intention of delivering log cabin kit he had promised them; jury was en-titled to believe evidence that defendant had pressured victims into giving him full purchase price of log cabinkit they had ordered and had then spent all of the money on past-due personal and business bills without usingany of it to purchase materials for their kit, that defendant had laid off all of his mill workers before he took vic-tims' money, that he had closed his bank account shortly after paying his bills, and that he was unable to obtainmore suppliers or services without new financing. People v. Norman, 1995, 85 N.Y.2d 609, 627 N.Y.S.2d 302,650 N.E.2d 1303, on remand 217 A.D.2d 902, 629 N.Y.S.2d 920. False Pretenses 49(4)



Conviction for larceny by false promise was sufficiently supported by evidence that defendant had induced hisgreat-aunt to acquiesce in opening of joint account by means of false promise, though defendant, as joint ownerof account, could not be said to have misappropriated money by unauthorized withdrawals; conviction wasbased on defendant's larcenous creation of account, and not on withdrawals therefrom. People v. Antilla, 1991,77 N.Y.2d 853, 568 N.Y.S.2d 9, 569 N.E.2d 868. False Pretenses 11; False Pretenses 49(2)

Evidence, including evidence that people were induced to invest money with defendant by promises of inordin-ately high rate of return in short period, that fraudulent pyramid scheme engaged in by defendant was bound tocollapse of its own weight, that many of defendant's representations were misleading and false and that defend-ant destroyed records of his plan and fled country after one of his agents was arrested, was sufficient to showguilty intent on part of defendant and to establish that he had committed crime of larceny by false promise.People v. Luongo, 1979, 47 N.Y.2d 418, 418 N.Y.S.2d 365, 391 N.E.2d 1341. False Pretenses 49(1)

Evidence was insufficient to convict home improvement contractor of larceny by false promises where althoughhe failed to complete work on three contracts, there was no showing to a moral certainty that he had no intentionto perform the work and, at most, evidence warranted inference that defendant was a bumbling novice in the en-trepreneurial community, and failure to complete the work was due, at least, in part, to actions of homeownersthemselves, there was no showing that additional funds would be needed to complete the work and although de-fendant expended portion of down payments for personal use he was under no legal or contractual duty to re-serve such payments for certain purposes. People v. Churchill, 1979, 47 N.Y.2d 151, 417 N.Y.S.2d 221, 390N.E.2d 1146. False Pretenses 49(4)

Evidence was legally sufficient to support defendant's conviction of larceny by false promise; at trial, the Peopleintroduced evidence that defendant bid a construction project at a church, estimating the costs of both materialsand labor, and that defendant was awarded the contract, before beginning any repair work, defendant received$3,125, which was his estimate of the cost of materials for the project, defendant spent all of the money receivedfrom the church on past-due personal and business bills without using any of it to purchase materials for the re-pair work, and defendant never began to work on the project and never returned the money. People v. Abeel (4Dept. 2009) 67 A.D.3d 1408, 888 N.Y.S.2d 696. False Pretenses 49(1)

Evidence that defendant wrongfully obtained victim's property by means of false promise to marry him, that de-fendant made promise for purpose of inducing victim to transfer property, and that victim was thereby inducedto transfer property was sufficient to support conviction for second-degree grand larceny, despite defendant'scontention that victim could not reasonably have relied on her promise because of its contingent nature. Peoplev. Collins (4 Dept. 2000) 273 A.D.2d 802, 710 N.Y.S.2d 216, leave to appeal denied 95 N.Y.2d 933, 721N.Y.S.2d 609, 744 N.E.2d 145. Larceny 65

Evidence did not support conviction for larceny by false promise; prosecution failed to show that at time defend-ant took $20,300 from customer for purchase of log home kit to be delivered in future, that defendant had no in-tention of delivering it. People v. Norman (4 Dept. 1994) 202 A.D.2d 1013, 609 N.Y.S.2d 482, appeal granted83 N.Y.2d 1006, 616 N.Y.S.2d 487, 640 N.E.2d 155, reversed 85 N.Y.2d 609, 627 N.Y.S.2d 302, 650 N.E.2d1303, on remand 217 A.D.2d 902, 629 N.Y.S.2d 920. False Pretenses 7(5)



Defendant, an electrical contractor who did not return money advanced for repairing lightning damage afterhomeowner decided to obtain other estimates, could not be convicted of larceny by false promise based on hiscashing of check; repairing lightning damage; fact that electrical worker arrived at homeowners' residence theday after defendant's estimate supported the hypothesis that the defendant would have performed the workthrough the subcontractor had he been allowed to do so. People v. Fangiullos (4 Dept. 1992) 186 A.D.2d 1007,588 N.Y.S.2d 673. False Pretenses 49(4)

Evidence that defendant promised investors an inordinately large profit when he knew that business was not be-ing operated at a profit and it could never yield profits as great as those promised, and that defendant withdrewmoney from then business for his own use at time he was not operating business at a profit, was sufficient tofind that defendant was engaged in a fraudulent scheme to deprive investors of their money by making promiseswhich he knew could not be attained, and was sufficient to support defendant's convictions of larceny by falsepromise. People v. D'Anna (4 Dept. 1990) 163 A.D.2d 810, 559 N.Y.S.2d 410. False Pretenses 49(1); FalsePretenses 49(4)

Evidence was sufficient to sustain convictions for larceny by false promise; defendant represented to his asso-ciates that money they gave him would be invested and they would receive extraordinarily high rates of interest;instead, he used funds received from subsequent investors to pay off his prior obligations, thereby engaging in afraudulent Ponzi scheme. People v. Gabriel (4 Dept. 1990) 161 A.D.2d 1154, 555 N.Y.S.2d 513. False Pretenses

49(1)

Evidence was sufficient to sustain conviction of larceny by false promise with respect to defendant's taking oftwo-carat diamond from another jeweler on “memorandum,” purportedly to show a customer, where defendantnever returned diamond or paid for it and was generally evasive regarding other jeweler's inquiries. People v.Shimoni (2 Dept. 1990) 159 A.D.2d 659, 553 N.Y.S.2d 175, appeal denied 76 N.Y.2d 796, 559 N.Y.S.2d 1001,559 N.E.2d 695. False Pretenses 49(1)

Evidence supported guilty verdict in prosecution for grand larceny by false promise arising from defendant'spromise to help elderly relative manage her money and instead transferring $180,000 into his individual accountwithout authorization. People v. Antilla (1 Dept. 1989) 156 A.D.2d 189, 548 N.Y.S.2d 445, appeal granted 76N.Y.2d 730, 558 N.Y.S.2d 892, 557 N.E.2d 1188, affirmed 77 N.Y.2d 853, 568 N.Y.S.2d 9, 569 N.E.2d 868.False Pretenses 49(1)

Evidence was sufficient to support conviction for larceny by false promise arising out of defendant's conductingof an “investment club” whereby he induced co-workers to give him money in exchange for promise that theywould receive a substantial return on their investment; evidence showed that defendant solicited and receivedmoney from many individuals, and that he was to deposit the money in a bank account and invest it in variousschemes; however, defendant never opened any account for investors, and used the money to pay for his person-al debts. People v. Hamilton (4 Dept. 1989) 155 A.D.2d 978, 547 N.Y.S.2d 784. False Pretenses 31

Evidence was sufficient to establish to moral certainty that defendant never intended to repay loan, and thus wassufficient to support conviction of larceny by false promises based on loan defendant received at time he was



over $100,000 in debt and was using loan proceeds to pay off other loans; in less than two years preceding loan,defendant had bounced approximately 109 checks, there was no evidence that loan was used for any businesspurpose, and, shortly after receiving loan, defendant went bankrupt. People v. Reynolds (4 Dept. 1989) 147A.D.2d 961, 537 N.Y.S.2d 716, appeal denied 74 N.Y.2d 746, 545 N.Y.S.2d 120, 543 N.E.2d 763. False Pre-tenses 49(1)

Evidence established to moral certainty that defendant held himself out as being able, by claimed or pretendeduse of occult powers, to influence or affect evil spirits or curses but never intended to and recognized that hecould not possibly fulfill promises he made to victims who paid for his services, supported conviction for lar-ceny. People v. Ballard (2 Dept. 1988) 143 A.D.2d 919, 533 N.Y.S.2d 558, appeal denied 73 N.Y.2d 1011, 541N.Y.S.2d 765, 539 N.E.2d 593, appeal denied 73 N.Y.2d 1023, 541 N.Y.S.2d 777, 539 N.E.2d 605, habeas cor-pus denied 772 F.Supp. 1335. False Pretenses 49(4)

Evidence was sufficient to sustain conviction of defendant for larceny on theory of obtaining property by falsepromise, where evidence revealed that defendant promised that monies she solicited would be used for invest-ment purposes, and gave investors schedules of interest rates she was paying, that defendant did not intend to in-vest money knowing that Ponzi scheme would inevitably collapse, and thus, that defendant intended to appropri-ate money of her investors by disposing of it for her own benefit. People v. Blum (4 Dept. 1987) 132 A.D.2d933, 518 N.Y.S.2d 482, appeal denied 70 N.Y.2d 702, 519 N.Y.S.2d 1037, 513 N.E.2d 714. False Pretenses

49(2)

Defendant's false promise to use money obtained from factoring service to pay defendant's employees was insuf-ficient to support conviction for grand larceny; defendant testified that he gave money to his partner and be-lieved that the employees were paid. People v. Milbauer (2 Dept. 1987) 128 A.D.2d 730, 513 N.Y.S.2d 224.False Pretenses 8

Evidence was sufficient to support conviction for larceny by false promise; promisee testified that defendant ob-tained $300 from promisee based on false promise to pay a fine that promisee allegedly owed to city police de-partment, promisee owed no such fine, and after obtaining money, defendant split it with third person and usedsome of it for drinking with third person and promisee, and thus did not intend to perform promise. People v.Emerson (3 Dept. 1986) 117 A.D.2d 935, 499 N.Y.S.2d 242. False Pretenses 49(1)

In prosecution for larceny by false promise, evidence that defendant had accepted money to provide round-tripair fares to Israel, had failed to contract for necessary aircraft, and it failed to refund prospective passengers'money was sufficient to support conviction. People v. Perlstein (2 Dept. 1983) 97 A.D.2d 482, 467 N.Y.S.2d682. False Pretenses 49(1)

Defendant contracting officers of corporation that contracted with city for installation of residential water metersdid not steal amounts paid to corporation so as to render them guilty of larceny by false pretenses arising fromdefendants' involvement with contracts, despite contention that, by virtue of their representations to city thatcontractor had paid its meter installers prevailing wage rate and that preplumbing work had been performed un-der supervision of master plumber as required by contracts, amounts paid to contractor was property stolen by



defendants. People v. Vanguard Meter Service, Inc., 1994, 160 Misc.2d 685, 611 N.Y.S.2d 430. False Pretenses11

Circumstances surrounding defendant's receipt of property, including his misrepresentations as to negotiabilityof purported checks to be applied against purchase price, his use of dishonored personal notes, his flight fromowners, and virtual identity between pattern of defendant's conduct in purported sales and other aspects of estab-lished scheme to defraud supported charge of larceny by false promise even if evidence compelled finding ofsale in instances of previous partial payment and/or receipt of invoice. People v. Kaminsky, 1985, 127 Misc.2d497, 486 N.Y.S.2d 814. Indictment And Information 10.2(11)

64.5. Weight of evidence

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found that, des-pite defendant's alleged intoxication, defendant intended to deprive victim of rifle that had been placed in hispossession for safe keeping, or to appropriate the rifle, and knowingly made a false report of a burglary to coverup the larceny, and, thus, jury verdict finding defendant guilty of grand larceny in the fourth degree and falselyreporting an incident in the third degree was not against the weight of the evidence. People v. Joslyn (4 Dept.2013) 103 A.D.3d 1254, 959 N.Y.S.2d 369, leave to appeal denied 21 N.Y.3d 944, 968 N.Y.S.2d 7, 990 N.E.2d141. Larceny 57; Obstructing Justice 170(3)

Weight of the evidence was sufficient to support finding, in prosecution for third-degree grand larceny broughtafter defendant, an auctioneer, failed to remit the net proceeds of an auction to the victim within the requiredtime period, that defendant possessed the requisite intent to deprive the victim of property or to appropriate thesame to himself or to a third person; defendant converted the sale proceeds to his own use by depositing thefunds into his general business account and using them to pay business expenses and debts. People v. Bonneau(3 Dept. 2012) 94 A.D.3d 1158, 941 N.Y.S.2d 765, leave to appeal denied 20 N.Y.3d 985, 958 N.Y.S.2d 700,982 N.E.2d 620. Auctions and Auctioneers 13; Larceny 57

65. Instructions

Jury charge in first degree robbery prosecution did not adequately convey the meaning of intent to the jury,where the trial court failed to instruct jury on the statutory definitions of the terms “deprive” and “appropriate”as they related to the meaning of larcenous intent, even though jury struggled with issue of whether defendantintended to permanently deprive the victims of the property taken from them. People v. Medina, 2011, 18N.Y.3d 98, 936 N.Y.S.2d 608, 960 N.E.2d 377. Robbery 27(3)

Evidence primarily supported theory of larceny by false pretenses, rather than theory of larceny by false prom-ise, particularly with regard to defendant's misrepresentations as to his qualification to render legal services, andthus defendant was not entitled to jury instruction on theory of larceny by false promise and its special “moralcertainty” standard of proof; even though evidence may have also supported theory of larceny by false promise,state was entitled to elect between those two theories. People v. Stuart (1 Dept. 2008) 51 A.D.3d 547, 858N.Y.S.2d 158, leave to appeal denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664. False Pretenses52



66. Sentence and punishment

Federal felony of unlawfully affecting commerce by extortion under color of official right was essentially simil-ar to New York felony of larceny by extortion, and attorney was thus automatically disbarred as result of hisconviction upon guilty plea to the federal felony, for bribing city councilwoman to vote in favor of real estatedevelopment project of one of attorney's clients. In re Mangone (2 Dept. 2011) 86 A.D.3d 79, 923 N.Y.S.2d 679.Attorney And Client 59.14(6); Extortion 19

Convictions of three counts of forgery in the second degree were not inherently inconsistent with acquittals ofgrand larceny in the second degree, scheme to defraud in the first degree, and two counts of forgery in thesecond degree, where jury could have found that total value of money defendant wrongfully appropriated tohimself through forgery was less than $50,000, that incidents of forgery for which defendant was convicted werethree isolated incidents rather than one continuing offense committed over time, and that defendant had permis-sion to sign his father's name on documents related to sale of farm equipment but not on documents related tohis father's personal finances. People v. Arbas (3 Dept. 2011) 85 A.D.3d 1320, 924 N.Y.S.2d 671, leave to ap-peal denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92. Criminal Law 878(4)

Sentence of 19 2/3 to 59 years imposed on defendant who was convicted of grand larceny in the second andthird degrees and scheme to defraud in the first degree was not harsh and excessive, in view of predatory natureand duration of crimes, number of victims, and severe impact that defendant's conduct had upon his victims andtheir families, among other things. People v. DeDeo (3 Dept. 2009) 59 A.D.3d 846, 874 N.Y.S.2d 291, leave toappeal denied 12 N.Y.3d 782, 879 N.Y.S.2d 59, 906 N.E.2d 1093, reconsideration denied 12 N.Y.3d 914, 884N.Y.S.2d 695, 912 N.E.2d 1076, habeas corpus denied 2010 WL 4553436. Sentencing And Punishment 84;Sentencing And Punishment 645

67. Reduction of charges

Defendant who pled guilty to reduced charge of petit larceny, following reduction of original third-degree grandlarceny charge against him, effectively received the benefit of the right to be prosecuted by information, wherefactual allegations of the misdemeanor complaint satisfied the requirements for an information as to the suffi-ciency of pleading each element of petit larceny. People v. Williams, 2009, 2009 WL 1606427, order recalledand vacated 25 Misc.3d 15, 887 N.Y.S.2d 749. Larceny 28(1)

68. Verdict

In order to convict defendant of grand larceny in the first degree, jury was not required to be unanimous as towhether defendant committed larceny by false pretenses or by embezzlement. People v. Conroy (1 Dept. 2008)53 A.D.3d 438, 861 N.Y.S.2d 46, leave to appeal denied 11 N.Y.3d 735, 864 N.Y.S.2d 394, 894 N.E.2d 658,certiorari denied 129 S.Ct. 579, 555 U.S. 1013, 172 L.Ed.2d 432. Criminal Law 872.5

69. Review

Trial court's failure to instruct jury on the statutory definitions of the terms “deprive” and “appropriate” as they



related to the meaning of larcenous intent in prosecution for first degree robbery was not harmless error, wherejury's confusion concerning the concept of intent was evident from its messages to the court during delibera-tions. People v. Medina, 2011, 18 N.Y.3d 98, 936 N.Y.S.2d 608, 960 N.E.2d 377. Criminal Law 1172.1(3)

Standard for appellate court reviewing record for legal evidentiary sufficiency under larceny by false promisesstatute is limited to assessing whether inference of wrongful intent logically flowed from proven facts andwhether any valid line of reasoning could lead rational trier of fact, viewing evidence in light most favorable toPeople, to conclude that defendant committed charged crime; “moral certainty” standard was not appropriate forsufficiency appeals from convictions for larceny by false promise. People v. Norman, 1995, 85 N.Y.2d 609, 627N.Y.S.2d 302, 650 N.E.2d 1303, on remand 217 A.D.2d 902, 629 N.Y.S.2d 920. Criminal Law 1144.13(3);Criminal Law 1159.5

Trial court did not abuse its discretion, in prosecution for third-degree grand larceny brought after defendant, anauctioneer, failed to remit the net proceeds of an auction to the victim within the required time period, in permit-ting the People to cross-examine defendant regarding his prior convictions for disorderly conduct, second-degreecriminal trespass, and issuing a bad check, as well as a probation violation, even though the crimes were not re-cent; given defendant's claim that he was an honest businessman who had no intention of permanently deprivingthe victim of her property, the probative value of the evidence outweighed its potential for prejudice, since itraised issues of individual dishonestly or untrustworthiness. People v. Bonneau (3 Dept. 2012) 94 A.D.3d 1158,941 N.Y.S.2d 765, leave to appeal denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620. Witnesses337(14); Witnesses 337(28)

While moral certainty standard of proof governs trier of fact in prosecution for larceny by false promise, thatstandard is not appropriate standard for appellate review of sufficiency of the People's proof. People v. Miller (3Dept. 2005) 23 A.D.3d 699, 803 N.Y.S.2d 734, leave to appeal denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845N.E.2d 1286. Criminal Law 1159.2(1); Larceny 55

Although jury may find defendant guilty of larceny by false promise only upon evidence establishing that thefacts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistentwith innocent intent or belief, and excluding to moral certainty every hypothesis except that of defendant's inten-tion or belief that the promise would not be performed, appellate court's review is limited to assessing whetherthe inference of wrongful intent logically flowed from the proven facts and whether any valid line of reasoningcould lead rational trier of fact, viewing evidence in light most favorable to the People, to conclude that the de-fendant committed the charged crime. People v. Cooper (3 Dept. 1996) 225 A.D.2d 897, 639 N.Y.S.2d 160.Criminal Law 1144.13(8); Criminal Law 1159.2(10)

Doctrine of lenity did not warrant dismissal of indictment under New York's extortion and coercion statutes,charging chairman and executive director of county Democratic committee with threatening to withdraw com-mittee's endorsement from judicial candidates if they did not comply with demands to pay for joint campaignwith other candidates; statutes made reasonably clear that defendants' conduct was criminal. People v. Feldman,2005, 7 Misc.3d 794, 791 N.Y.S.2d 361. Indictment And Information 144.1(1)



70. Preservation of issues

Defendant's challenge to trial court's failure to instruct jury on the statutory definitions of the terms “deprive”and “appropriate” as they related to the meaning of larcenous intent in prosecution for first degree robbery waspreserved for review, where defendant's counsel expressed concern that the jury might not understand the mean-ing of the phrase “appropriated for himself” and requested a particular charge as to intent with regard to thatphrase, which the court rejected. People v. Medina, 2011, 18 N.Y.3d 98, 936 N.Y.S.2d 608, 960 N.E.2d 377.Criminal Law 1038.1(4)

McKinney's Penal Law § 155.05, NY PENAL § 155.05

Current through L.2013, chapters 1 to 340.

© 2013 Thomson Reuters

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N.Y. Penal Law § 155.05(2)(e) (McKinney 2013)theamazonpost.com/post-trial-brief-pdfs/brief/58a_NYPenalLAW155.05.pdfHISTORICAL AND STATUTORY NOTES Derivation Subd. 1. Penal Law 1909