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Sandoval ruling

An appeal was made by the defendant from a judgment of the Criminal County Court convicting him of grand larceny in the third degree (four counts) and scheme to defraud in the first degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of 1 to 3 years, 1 1/3 to 4 years, 1 2/3 to 5 years, and 2 to 6 years imprisonment, respectively, on each of his convictions of grand larceny in the third degree, and an indeterminate term of 2 to 6 years imprisonment on his conviction of scheme of bank fraud in the first degree, to run concurrently with the terms of imprisonment imposed on the convictions of grand larceny in the third degree.

The judgment is modified, on the law, by reducing the sentence imposed on the conviction of scheme to defraud in the first degree from an indeterminate term of 2 to 6 years imprisonment to an indeterminate term of 1 1/3 to 4 years imprisonment; the judgment is affirmed.

The defendant contends on appeal that the jury verdict was not supported by legally sufficient evidence. This contention is unpreserved for appellate review as the defendant’s motion for a trial order of dismissal was general in nature. In any event, viewing the evidence in the light most favorable to the prosecution, it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of factual review power, the verdict of guilt was not against the weight of the evidence.

As the People correctly concede, the sentence imposed for the conviction of scheme to defraud in the first degree was illegal. However, it is clear that the County Court intended to impose upon the defendant the maximum sentence, and we find that it would be appropriate to do so. Consequently, the judgment is modified to reflect the intention of the County Court.

The defendant’s contention that the imposition of consecutive sentences was illegal is without merit. Each of the grand larcenies committed by the defendant was a separate and distinct act committed against a separate victim.

Furthermore, given the circumstances of this case, the sentence imposed was not excessive. The defendant’s remaining contentions are without merit.

An appeal was made by another defendant from a judgment of the County Supreme convicting him of criminal possession of a forged instrument in the second degree (two counts), grand larceny in the second degree (three counts), attempted grand larceny in the second degree, and scheme to defraud in the second degree, upon a jury verdict, and imposing sentence.

The judgment is modified, on the law and the facts, by reversing the conviction of grand larceny in the second degree under count six of the indictment, dismissing that count, and vacating the sentence imposed thereon. The judgment is affirmed.

In count six of the indictment the defendant was charged with stealing $4,330 from the president of a factoring service which did business with the defendant. The undisputed evidence established that in March 1983, the defendant received a $4,330 advance from the factory president upon the promise that he would use the money to pay his employees. The factory president testified that the defendant’s payroll was not met and that the defendant’s company went out of business. The defendant testified that he gave the money to his partner and that he believed the employees were paid.

Viewing the evidence in the light most favorable to the People, the defendant did not perform his promise to the factory president. However, this evidence is insufficient to sustain the defendant’s conviction under count six of the indictment. In any prosecution for larceny based upon a false promise, the defendant’s intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed. Such a finding may be based only upon evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant’s intention or belief that the promise would not be performed.

With respect to the defendant’s contention regarding the court’s Sandoval ruling, the court properly ruled that the prosecutor could inquire into the facts underlying the defendant’s prior convictions for the purpose of impeaching his credibility.

Trust is the easiest thing to break but hard to gain back. If you want to pursue a grand larceny case against someone who stole from you, the Suffolk County Grand Larceny Attorney or the Suffolk County Robbery Lawyer from Stephen Bilkis and Associates. A Suffolk County Criminal Attorney can also give you expert legal advice if you need one.