A woman filed an appeal from the decision convicting her of the crimes of grand larceny in the second degree and in the fourth degree, forgery in the second degree and identity theft in the third degree. The woman’s husband also appealed from the decision convicting him of the crime of grand larceny in the second degree.
After the woman spent more than $150,000 from bank accounts held jointly with her elderly grandmother, she and her husband were charged with grand larceny in the second degree. The woman was also charged with grand larceny in the fourth degree and forgery in the second degree as a result of her endorsement of a check payable to her deceased father, and identity theft in the third degree based upon her application for and use of a credit card under the name of her grandmother.
At the trial, the evidence revealed that the funds in the joint bank accounts had come solely from the woman’s grandmother, and that grandmother voluntarily placed the funds in joint names to enable the woman to pay her grandmother’s bills and expenses. The woman then wrote many checks on the accounts payable to herself. She also used $75,000 of the funds to purchase a home for her grandmother to live in. But, the woman put the name of the house under her name and eventually sold it, keeping the proceeds. Neither the woman nor her husband testified at trial, but their attorney argued that use of the funds could not constitute larceny because the woman was a joint owner of the accounts. Consequently, the court rejected the argument, charging the jury as to criminal larceny.
Afterward, the jury convicted the woman and her husband as charged. The court sentenced the woman to a prison term of three to nine years on her conviction of grand larceny in the second degree to run concurrent with one-year terms on the other charges, and sentenced the woman’s husband to five years of probation and ordered them to pay reimbursement. But, the offenders initiated an appeal from the decision.
Sources revealed that the court is persuaded by the offender’s argument that the evidence at trial was legally insufficient to establish their guilt.
The indictment stated that the offenders stole in excess of $50,000 from their grandmother. The complainant’s bill of particulars specified that the offenders did intentionally and fraudulently obtain their grandmother’s signature on a power of attorney and did then steal from the bank accounts, and fraudulently obtained title to a house using money from the said accounts that did not belong to them.
The attorney explained that the evidence would show that after the woman set up joint bank accounts with her grandmother, she stole the money by withdrawing funds from the accounts for her own benefit. The attorney also mentioned the power of attorney, that there was no claim or evidence that the woman obtained her grandmother’s funds by that means.
Based on records, the complainant were required to prove that the woman committed larceny by taking money from the joint bank accounts over a period of time. Because the woman clearly had been made a joint owner of those accounts, however, she could not be convicted of grand larceny in the second degree based upon proof of her unauthorized withdrawal and use of the funds. Whereas the evidence presented might give rise to civil liability on theft from the joint accounts if proven.
When the court reviewed the matter upon the offenders’ motion to set aside the decision, it stated that the larceny was not in taking moneys from the accounts, but in fraudulently creating them. The court also suggested that larceny by false promise was the actual theory of larceny supported by the evidence.
In the court’s appellate brief, however, the complainant rejected the offender’ contention that larceny by false promise was the complainant’s theory of the case and argued that in addition to that, the evidence proved a larceny by false pretenses or trick.
The record, however, is devoid of evidence that the woman made a false representation or statement of a prior or existing fact upon which the grandmother relied in creating the joint accounts, and the grandmother testified only as to the woman’s promise as to how the accounts would be used in the future.
To the extent that the complainant was in oral argument, raise larceny by false promise as a possible basis for the offenders’ conviction, the court found nothing in the record representing that they intended to prove the type of larceny.
Based on records, the attorney’s opening statement, and the charge conference, the woman’s had no reason to believe that larceny by false promise was the basis for the charge against them or to object to its consideration. Also, to establish larceny by false promise, the inference of criminal intent may not be drawn solely from the fact that the woman’s promise was not performed.
Further, the only direct evidence of such criminal intent was the woman’s repeated failure to do what she had promised. With that the complainant may not assert the theory now to salvage the offender’ convictions of grand larceny in the second degree.
However, the court cannot agree with the offenders that the evidence was legally insufficient to support the charges of grand larceny in the fourth degree and forgery in the second degree. The woman’s signing and cashing of a pension check payable to her deceased father without an order of the surrogate’s court was legally sufficient to demonstrate her lack of authority and it result into theft. Providing that it was the only evidence before the jury, its judgment also was not against the weight of the evidence.
The court found that the evidence was also legally sufficient to establish the woman’s commission of the crime of identity theft in the third degree. The credit card account was opened in the victim’s name and with her identifying information, and three charges were made. The grandmother testified that she never applied for the credit card and had not made any purchases with it.
For that reason, the court found no merit in the woman’s claim that the power of attorney authorized her application for the credit card on the grandmother’s behalf, as there was no reference in the application or the bank manager’s testimony that the woman made the application on the grandmother’s behalf or pursuant to a power of attorney.
The offenders’ remaining argument, including the claims of prosecutorial misconduct and ineffective assistance of attorney, have been reviewed and rejected.
However, after the Supreme Court reviewed the case, it is ordered that the judgment as to the woman is modified by reversing the convictions of grand larceny in the second degree under count one of the indictments. The count is dismissed as to the woman, sentence imposed thereon and amount of reimbursement is vacated. The matter is also remitted to the court for further proceedings not inconsistent with the court’s decision, including a new determination of the amount of reimbursement.
It is further ordered that the judgment as to the woman’s husband is also reversed, on the law, and indictment as to the man is dismissed.
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