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Executive Law § 63(3)


Appeals by the defendant, as limited by his motion, (1) from a sentence of the Supreme Court, Queens County, imposed January 27, 1988, the sentence being an indeterminate term of 2 to 4 years imprisonment, upon his conviction of grand larceny in the third degree, after a plea of guilty, and (2) by permission, from an order of the same court dated June 13, 1990, which denied his motion pursuant to CPL 440.20 to vacate his sentence.

A Nassau County Criminal attorney said that on May 14, 1987, at the corner of the Van Wyck Expressway and Atlantic Avenue in Queens, the defendant stole a 1986 Pontiac Firebird. Approximately one hour later, the defendant used the stolen vehicle as a getaway car after an accomplice forcibly stole a woman’s purse in Nassau County. After a high speed chase with police, the criminal defendant crashed the car into a telephone pole and was arrested.

In Queens, the defendant was charged, inter alia, with grand larceny in the third degree under Queens County Indictment Number 3518/87. In Nassau County, he was charged, inter alia, with robbery in the second degree.

On August 17, 1987, in the Supreme Court, Queens County, the defendant pleaded guilty to one count of grand larceny in the third degree in full satisfaction of the Queens County indictment.

The record indicates that sentencing in Queens County was adjourned numerous times because the defendant was unable to resolve the Nassau County charges. On December 1, 1987, the Supreme Court, Queens County, adjudicated the defendant a second felony offender and specifically informed him that this would be the last adjournment given to enable him to resolve the Nassau County charges.

The Nassau County charges were not resolved by January 27, 1988. The defendant, by counsel, then moved orally in the Supreme Court, Queens County, to vacate his plea. The Supreme Court denied the application, noting that there had been more than five adjournments to allow the defendant to dispose of the Nassau County charges.

On April 21, 1988, the defendant pleaded guilty in the County Court, Nassau County, to one count of robbery in the second degree in satisfaction of Nassau County Indictment Number 66199. The Nassau County Court expressly advised the defendant that the sentence would be for an indeterminate term of four to eight years imprisonment to run consecutively and not concurrently with the two to four years imprisonment he was then serving on the Queens County indictment.

The defendant subsequently moved to vacate the instant [179 A.D.2d 817] sentence imposed on Queens County Indictment Number 3518/87, claiming, inter alia, that the guilty plea had been induced by an unfulfilled promise and that the time limitations imposed by the Supreme Court, Queens County, to resolve the Nassau County charges were not set forth on the record.

On December 1, 1987, the Supreme Court, Queens County, made its intention to go forward with sentencing on January 27, 1988, absolutely clear, and the defendant was aware that he would have to resolve the Nassau County charges before that date in order to take advantage of the promise of concurrent terms of imprisonment. Since the condition for the promise of concurrent terms of imprisonment had not been met, the court was not obligated to allow the defendant to withdraw his guilty plea. In addition, the defendant waived any right he may have had to request the fulfillment of the original promise as to sentence, or in the alternative, withdrawal of his guilty plea in Queens County, when he agreed to the imposition of consecutive terms of imprisonment upon pleading guilty in Nassau County. Further, no circumstances in this case warrant a modification of the defendant’s sentence in the interests of justice.

In another criminal case, defendant appealed from six judgments of the County Court, Nassau County, all rendered May 16, 1984, convicting him of grand larceny, petit larceny, commercial bribing in the first degree and scheme to defraud in the first degree, upon jury verdicts, and convicting him of attempted grand larceny.

On appeal, defendant contends that the Attorney-General was not properly authorized to conduct Grand Jury proceedings in accordance with Executive Law § 63(3), and that the additional Grand Jury which returned the indictments against him was not impaneled in accordance with the rules of this court.

Executive Law § 63(3) provides, inter alia, that the Attorney-General shall investigate and prosecute “the alleged commission of any indictable offense or offenses in violation of the law in relation to any matters connected with [the Insurance] department” upon “request” of the Superintendent of Insurance. Initially, we note that this provision “should not be construed strictly, but, rather, should be read in ‘a sense to accomplish the purpose intended’ ”

In the absence of any mandated form in the Executive Law for such requests, we find sufficient authorization in the Insurance Law for the form used. Insurance Law § 302 provides that any order of the Superintendent which must be in writing may be “signed by the superintendent or by his authority”.

Turning to defendant’s second contention, we find that the order of the County Court Judge which authorized the impaneling of an Attorney-General’s Grand Jury was not in contravention of any statute.

Defendant also contends that every theory or definition of larceny outlined in Penal Law § 155.05 which was charged to the jury must be sustained by the evidence in order to support his conviction for grand larceny in the second degree. He contends that one of the four theories so charged was not established by the evidence. He urges that a criminal conviction must be reversed where the jury may have determined guilt based upon a theory not supported by the evidence. We do not reach this issue of law because we find that each of the four theories of larceny upon which the jury was instructed was proved beyond a reasonable doubt. Specifically, defendant challenges the sufficiency of the evidence concerning second degree grand larceny by bad check. The crime of issuing a bad check is defined in relevant part as follows: “A person is guilty of issuing a bad check when: “1. (a) As a drawer or representative drawer, he utters a check knowing that he or his principal, as the case may be, does not then have sufficient funds with the drawee to cover it, and he intends or believes at the time of utterance that payment will be refused by the drawee upon presentation, and payment is refused by the drawee upon presentation”

Defendant contends that the People failed to prove that he uttered the checks at issue knowing that he did not then have sufficient funds with the drawee. The People offered no direct evidence concerning defendant’s bank balances at the time of utterance.

A representative of the New York State Automobile Insurance Plan testified that in January 1981 the plan’s certified check requirement was reimposed upon defendant’s multiple brokerage corporations due to the number of checks returned unpaid by the drawee banks.

In addition, representatives of the three insurance carriers named in the indictment as victims of defendant’s larceny testified to amounts unrecovered by reason of defendant’s dishonored checks. A collection clerk with the Allstate Insurance Company, testified that defendant’s checks in the amount of $5,000 were returned unpaid for “insufficient funds” or “account closed”. Photocopies of the dishonored checks were introduced into evidence.

In addition, defendant’s employees testified that he was kept informed of daily bank balances, that checks were issued upon insufficient funds, and that defendant’s authorization was required to issue checks.

We can help you with your grand larceny cases here in Stephen Bilkis and Associates, you can consult our Nassau County Grand Larceny Attorneys for enlightenment. For other matters, you can also consult our Nassau County Criminal Lawyers.

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