Articles Posted in Grand Larceny

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The criminal defendant appeals from an order which denied, without a hearing, his application to vacate a judgment of the same court, rendered July 21, 1975, which convicted him of grand larceny in the third degree, upon his plea of guilty, and sentenced him to an indeterminate term of imprisonment not to exceed three years.

The trial court erred in denying, without a hearing, criminal defendant’s motion to vacate the judgment. The appeal from the judgment, which was affirmed, concerned only matters in the record. The issue on this appeal concerns matters dehors the record. Consequently, it was error to hold that the instant issue on appeal was raised and already resolved against the defendant on the appeal from the judgment.

The court, in denying the motion, further erred in basing its decision on People v. Davidson (35 N.Y.2d 227). The Davidson case is clearly distinguishable since it involved a patently incredible allegation which was flatly contradicted by the record. Furthermore, in Davidson, the Judge who allegedly made the off-the-record promise was deceased at the time of the second coramnobis application. In the instant appeal the record does not contradict the allegation of an off-the-record promise; nor can it be said that the allegation is incredible as a matter of law.

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Defendant moves for re-sentence of a 1964 conviction in this Court. The sentence in question was ten to fifteen years in Prison for Grand Larceny, first degree, as a third felony offender. He contends that his two prior cnvictions (both in Washington, D.C.) do not constitute criminal felonies under Sec. 1941 of the Penal Law, which in effect provides that a court may sentence a defendant as a multiple offender if the previous crimes committed by the defendant in a foreign jurisdiction would constitute felonies if committed in New York. His moving papers and memorandum of law show extensive research and his contentions are fortified with numerous citations of authority.

It appears that in April, 1946, criminal defendant was convicted of Robbery in the Second Degree, after trial in the District Court, District of Columbia, and sentenced to a term of from two to six years in prison. Again, in 1956, in the same court, upon his plea of guilty to Attempted Robbery, he was sentenced to prison for a term of from one to three years. Defendant contends, however, that the statutes under which he was convicted in the District of Columbia are not proper multiple offender predicates since the said sections define as robbery, acts, which if committed in New York would not be considered felonies.

Defendant argues that since Sec. 22-2901 provides that a robbery may be committed in the District of Columbia by ‘stealth’ but without force that they are not crimes which, if committed within this state, would be a felony and therefore are not a proper basis for sentencing as a third felony offender.

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In this criminal proceeding and action, the petitioner seeks to compel the Nassau County Board of Cooperative Educational Services (hereinafter BOCES) to pay her, pursuant to a collective bargaining agreement between BOCES and the BOCES Educational Administrators Association, the sum of $16,768, representing the cash value of a 40-day vacation leave balance, and pursuant to a 2004 amendment to the collective bargaining agreement, the sum of $14,252.80, representing the cash value of a 34-day vested bank vacation leave balance.

BOCES moved to dismiss the combined petition/complaint, arguing that, as a matter of public policy, the petitioner is not entitled to either payment because she pleaded guilty to attempted grand larceny in the second degree for stealing its funds. The Supreme Court agreed with BOCES and dismissed the petition/complaint on the ground that BOCES was within its right to deny the petitioner’s request for a lump sum payment representing her unused and vested bank vacation leave in light of her criminal guilty plea.

The petitioner’s guilty plea did not warrant dismissal of her petition/complaint. Rather, the express provisions of the collective bargaining agreement must control. The collective bargaining agreement at issue provides that unit members employed on a twelve (12) month basis shall be entitled to twenty-two (22) days of leave with pay per calendar year to be taken as approved by the appropriate department head or his/her designee, consistent with the needs of the agency. Such annual leave shall be earned and may be accumulated from year to year, up to a maximum accumulation of forty (40) days.

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In this case, we are asked whether a three- or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of the school board. We hold that the six-year limitations period in CPLR 213(7) is applicable and, therefore, this action was timely commenced.

In September 2002, an accounting firm hired by plaintiff XXX School District discovered irregularities in the district’s financial records. An audit revealed that Mr. GM, the assistant superintendent for business, had stolen $223,000 from district accounts. The XXX School District Board of Education (the Board) was notified of Mr. GM’s misconduct and it decided to allow Mr. GM to repay the misappropriated funds along with attorney’s fees and accounting costs and retire. The Board, however, did not notify law enforcement authorities or state officials about Mr. GM’s criminal activities, nor did it publicly disclose her illegal conduct.

Unfortunately, the theft by Mr. GM turned out to be just one component of a long-running conspiracy to loot the school district’s coffers. After Mr. GM left her post, information about additional missing funds surfaced and eventually a criminal investigation was undertaken by the Nassau County District Attorney’s Office. In June 2004, Mr. GM was arrested for grand larceny in the first degree for stealing more than $1 million from the school district. The investigation also implicated the school district’s superintendent (Mr. TX) and an account clerk (Ms. D, who was Mr. GM’s niece), and they too were arrested for grand larceny. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Mr. GM had stolen over $4.6 million; Mr. TX had taken more than $2.4 million; and Ms. D had received about $300,000. In total, various sums had been funneled to more than two dozen people.

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The defendant appeal the judgment of the County Court, Nassau County, convicting him of murder in the first degree, murder in the second degree, robbery in the first degree, and of grand larceny and assault, and after a jury recommendation, imposing sentence of life imprisonment on the conviction of murder in the first degree.

After the crimes were committed, the defendant fled to California, where he was arrested and searched. Immediately after the arrest, the California police searched and found two revolvers in the automobile which the defendant had rented.

The criminal defendant was interrogated in California, on the plane returning to New York after he had waived extradition, and also in Nassau County before his arraignment there. Some of the statements and confessions made before the defendant left California were made after a New York attorney, who had been retained by the defendant’s parents to represent him, communicated with the Nassau County police officials, inquired as to the defendant’s whereabouts and informed such officials that he intended to go to California and that he did not want any statements taken from the defendant.

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Defendant moves by writ of habeas corpus to dismiss an indictment pending against him in this court by reason of the People’s failure to bring said indictment on for trial within a period of 180 days. Although the defendant’s argument is versed in terms of an application pursuant to section 669-a of the Code of Criminal Procedure, the court will also treat the petition as one pursuant to section 668 of the Code.

On June 30, 1959, defendant was sentenced to Sing Sing Prison upon a judgment of conviction rendered in the County Court of Suffolk County. Prior thereto, on January 21, 1959, and March 23, 1959, warrants had been lodged against defendant by reason of informations filed in the Nassau County District Court charging defendant with violations of sections 1290, 1293-a and 1294 of the Penal Law. These warrants were, thereafter, lodged with the warden of Sing Sing Prison.

Defendant alleges that during his incarceration in state prison he served upon the district attorney of Nassau County a notice to dispose of any untried indictment, information, or complaint pending against him (Code Crim.Proc., § 669-a). The district attorney acknowledges receipt of such notice on or about October 21, 1959.

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Defendants move for an order modifying a Grand Jury subpoena duces tecum directed to their accountant, which commands, inter alia, the production of personal income tax retuns of the defendants, FDO, Sr., MDO and GM.

Defendants move to modify item number 3 of the subpoena duces tecum directed to their accountant, which commands the accountant to produce the personal income tax retuns of FDO, MDO and GM, for the period January 1, 1985 to present.

The defendants claim that they have standing to bring this application because they are interested parties whose rights to privacy are directly at stake and the items sought are unrelated to any legitimate objective of the Grand Jury and that the District Attorney is using the Grand Jury as a fishing expedition in hope of uncovering other criminal activity. It is further argued that the request for personal tax returns should be viewed as an improper use of the subpoena power to harass defendants. In support of their privacy rights argument, the defendants claim that the subpoena violates the confidentiality provisions of the Federal Tax Reform Act of 1976 (26 U.S.C. § 6103[a] and the Secrecy provisions of the New York State Tax Law (Tax Law § 697[e].

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This is a motion to inspect the minutes of the Grand Jury. The indictment charges the defendant with the crime of grand larceny in the first degree.

The testimony before the Grand Jury showed that criminal defendant was employed as a truck driver by a firm engaged in the installation of hardwood flooring which maintained a rail siding, offices, warehouse and yard near Union Avenue, Westbury. The only means of ingress and egress to the public highway was an open driveway leading from its yard to Union Avenue. There were no locked gates between Union Avenue and the yard so that the yard was easily accessible to the public at any hour of the day and night.

Following an order received from a construction firm at Freeport, criminal defendant and his helper, on Wednesday, May 11, 1955, loaded an open truck with the flooring material mentioned in the indictment for delivery to Freeport. Such flooring was in bundles about two foot long, with approximately ten pieces of wood in a bundle, and could easily be moved on or off the truck.

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This is a motion to inspect the minutes of the Grand Jury. The indictment charges the criminal defendant with the crime of grand larceny in the first degree.

The testimony before the Grand Jury showed that criminal defendant was employed as a truck driver by a firm engaged in the installation of hardwood flooring which maintained a rail siding, offices, warehouse and yard near Union Avenue, Westbury. The only means of ingress and egress to the public highway was an open driveway leading from its yard to Union Avenue. There were no locked gates between Union Avenue and the yard so that the yard was easily accessible to the public at any hour of the day and night.

Following an order received from a construction firm at Freeport, defendant and his helper, on Wednesday, May 11, 1955, loaded an open truck with the flooring material mentioned in the indictment for delivery to Freeport. Such flooring was in bundles about two foot long, with approximately ten pieces of wood in a bundle, and could easily be moved on or off the truck.

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Defendant’s motion for an order directing that the People make disclosure, directing that they serve a bill of particulars, dismissing the accusatory instrument as facially defective, dismissing it on the ground that prosecution is barred by a legal impediment, dismissing it on the ground that there is a lack of jurisdiction, dismissing it for failure to provide a speedy trial, suppressing identification testimony, and precluding or suppressing use of any statement Criminal Defendant made to police, is granted to the extent that the accusatory instrument is dismissed as facially defective.

Defendant was originally accused by felony complaint of grand larceny in the 4th degree, a class E felony. The complainant is Police Officer who thereby attests upon information and belief that, on August 20, 2004, Defendant removed a black 2004 GMC from an auto collision shop known as K&G Garage without making payment for the parts and repairs performed on it, that the Criminal Defendant drove around the employee who was attempting to stop her from leaving by placing his body in her path, that the Defendant owed the victim $3,648.66, and that Defendant left a check in the amount of $1,000 which, when deposited by the victim was returned for insufficient funds. By order dated January 21, 2005, the court converted the felony complaint to an information through notations and directed that upon the filing of the information the felony charge of 155.30(1) is reduced to the non-felony charge of 155.25, i.e. stealing property. The felony complaint itself bears the handwritten note converted to ct 2, 155.25. According to the notations on the court file, the People, also on January 21, 2005, filed a supporting deposition, which was annexed to the felony complaint, and Defendant was arraigned on the document, which thus became an information. By that supporting deposition, JW attests in pertinent part that: “I am the owner of K&G Garage, 656 Rockaway Tpke., N. Lawrence and was advised by one of my employees, Thomas Watson, that as he was moving cars around the shop this morning a female white, whom he knows to be the owner of a GMC 2004 Envoy Black, Vin No.1GKDT13S042349492, AK, did arrive at the shop and advised that she was here to pickup her car. My employee advised her that she would have to wait for me. With that, the female jumped into her auto and fled with it out of my lot, N/B Rockaway Tpke. I currently have an outstanding balance of $2175 plus parts 1201.72, total $3648 including tax, for a mechanics lien on this vehicle. I had advised the owner yesterday, that there was an outstanding balance. At that time she did possess a Florida Reg. Plate for the car. Today, when she fled with the car, there were no plates on the car. As she fled with the car, this female threw a white envelope containing a Fleet Bank check, with no name, signed but the signature was illegible, check # 94966-98094-0095 in the amount of $1,000.00. I do not give anyone permission to remove any car from my possession, without making full and complete payment for the work completed. I request the arrest of AK.”

This case, and others then pending against this Defendant, were thereafter adjourned numerous times for assorted reasons. All of those other cases have been disposed of. Defendant has declined to make restitution as part of any plea agreement in this case, which then proceeded toward trial. But, by notice that is undated, Defendant made the present motion for the items of relief specified above. Because of my determination that the accusatory instrument is facially defective, I do not reach Defendant’s other requests for relief.