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CPL 460.50 (subd. 5)

A Suffolk Criminal Lawyer said that, this is an appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered July 13, 1983, convicting him of grand larceny in the second degree, upon a jury verdict, and sentencing him to a definite prison term of one year.

A Suffolk Grand Larceny Lawyer said that, in another case defendant appealed from a judgment of the County Court, Suffolk County, rendered June 3, 1985, convicting him of burglary in the first degree, assault in the first degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

The issue in this case is whether the court erred in convicting the defendant of grand larceny in the second degree, upon a jury verdict, and sentencing him to a definite prison term of one year.

The trial court sufficiently instructed the jury that in order to render a verdict of guilty, they were required to find that defendant specifically intended to commit grand larceny (Penal Law, §§ 155.05, 155.35). In addition, the trial court informed the jury of all of the elements of the crime of grand larceny in the second degree, and properly defined the terms “deprive” and “appropriate”. Furthermore, any error committed by the trial court during the voir dire of the jury by stating that defendant was not required to testify, even though defendant never requested such a preliminary instruction, and by requiring the prosecutor to divulge the names of her prospective witnesses, was harmless beyond a reasonable doubt. However, we reiterate that names of prospective witnesses should be obtained from the attorneys outside the presence of the jury and presented to the prospective jurors without attribution to either party, or that, absent a request by defendant, the Trial Judge may make no comment concerning defendant’s right not to testify.

In the second case the court held that, upon the exercise of our factual review power, the court is satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5]). The People proved the defendant’s criminal responsibility for the crimes for which he was convicted (see, Penal Law former § 30.05, now § 40.15; see also, Penal Law § 25.00). Generally, where conflicting expert testimony is presented, the question of sanity is primarily for the jury. The jury has the right to accept or reject the opinion of any expert and where, as here, there is an absence of a serious flaw in the testimony of the People’s expert, the jury’s resolution of the issue of sanity will not be disturbed.

The trial court’s decision to make the term of imprisonment for the conviction for grand larceny in the third degree consecutive to the concurrent terms imposed for the convictions of burglary in the first degree and assault in the first degree was proper. At bar, the People relied upon the assault and not the grand larceny offense to provide a material element of the burglary conviction (see, Penal Law § 140.30[2]). Thus even though all the crimes occurred during a continuous course of activity, the burglary and grand larceny offenses constituted separate and distinct acts, and none of the completed offenses was a material element of the other.

Accordingly, the court held that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence to a definite term of imprisonment of three months. As so modified, judgment affirmed and this case is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (subd. 5). Under the facts of this case the sentence as reduced is more appropriate.

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