Articles Posted in Grand Larceny

Records reflect that in this first case, in a felony charge, the accused appeared to testify before the Grand Jury without an attorney. Despite the fact that he stated that he could not afford an attorney, he was not afforded the opportunity to apply for legal aid or court-appointed counsel. In the Grand Jury room, he stated that he had not spoken to an attorney about testifying before the Grand Jury, and that he did not know that he had a right to have an attorney in the Grand Jury room after he had signed and sworn to the waiver of immunity. He was then sworn, again signed the waiver, and testified about the incidents in question. He was indicted, charging him with a scheme to defraud in the first degree, grand larceny in the second degree, grand larceny in the third degree (8 counts), and petit larceny (9 counts).

He now moves, for an order pursuant to CPL 210.20 dismissing the indictment on the ground that he had immunity under CPL 190.40 with respect to the offenses charged. He argued that the waiver of immunity executed by him was invalid because his right to counsel had attached at the time he was arraigned on the felony complaint, he signed the waiver in the absence of counsel, and he did not make a knowing and voluntary waiver of that right at the Grand Jury proceedings. The motion was granted and indictment dismissed.

The court held that it is well established in this State that an accuse against whom formal criminal charges have been filed has an indelible right to counsel. Once an accusation is made by the filing of a felony complaint, the matter is in litigation and this “is precisely the juncture at which legal advice is crucial and any discussions relating thereto should be conducted by counsel: at that point the parties are in no position to safeguard their rights”. Moreover, “nice distinctions between the need for counsel at various stages of the proceedings are irrelevant once the right to counsel has indelibly attached”.

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Records reflect that a man went to the accused, who was then an Assemblyman, for assistance in recovering the designation as a County Towing Garage which he had previously enjoyed. In response to this entreaty the Assemblyman made a telephone call to the County Comptroller, and requested his help in securing the sought after designation. In return, the Assemblyman allegedly demanded and received remuneration. Another was also introduced to the Assemblyman who was interested in obtaining contracts for cement work. Again a telephone call was made and again remuneration was allegedly sought and received. Eventually these criminal events came under the scrutiny of a County Grand Jury where he denied receiving money from either complainants.

He now stands accused of Grand Larceny in the Third Degree by Extortion and of two counts of Bribe Receiving in the first indictment, and in the second indictment of two counts of Perjury in the First Degree. The accused now moves for a trial order of dismissal on the grounds that the criminal evidence is not legally sufficient and for an acquittal on the grounds that the evidence is insufficient as a matter of law to prove his guilt beyond a reasonable doubt.

The court ruled that the evidence under CPL 70.10(1) is legally sufficient. However, the only testimony as to the elements of a threat and the instilling of fear is an isolated statement by the first worker. The manner in which this testimony was given, taken in context, renders it implausible that there was a threat made by the accused to the worker which instilled in the latter a fear that the accused would harm him materially with respect to his business or financial condition. This implausibility is so manifest that there exists a reasonable doubt as a matter of law as to his guilt of Larceny by Extortion. Therefore, the first indictment should be and the same is hereby dismissed.

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According to sources, in this first instant case, the accused’s present conviction is based upon an investment scheme which grossed approximately four million dollars in the instant County. He has been convicted on similar charges in another County and that conviction has been upheld by this court. The central argument set forth on this appeal is that the County prosecution is barred by the prior County conviction pursuant to the double jeopardy provisions of the CPL in that the accused’s investment scheme, which extended from the other County to other areas, constituted a single criminal transaction. Generally, multiple larcenies are considered as a single offense or transaction only where the property is taken from the same owner and place by a series of acts which are pursuant to a single intent and in execution of a common fraudulent scheme.

The Judgment against him was modified, on the criminal law, by reducing the conviction under count 18 of the indictment from grand larceny in the second degree to grand larceny in the third degree and by reducing the maximum term of the sentence imposed thereon from seven years to four years, to be served concurrently with the sentences imposed on the other convictions of grand larceny in the third degree.

As to his contentions that the People failed to establish he committed the crimes of larceny as charged, and that the sentence imposed was illegal and excessive. Finally, we consider his criminal allegation that pretrial publicity and the sentencing in the prior County denied him a fair trial in the present County. In view of his waiver of a jury trial and his election to proceed in the present County rather than to request a change of venue, his argument is without merit.

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On the evening of October 4, 1976 defendant was arrested on a warrant issued by the Nassau County District Court for the charge of forgery in the second degree. At that time, defendant was on parole from a 1964 sentence of 10 to 20 years’ imprisonment imposed upon his conviction of the crimes of forgery and grand larceny.

A Nassau County Criminal lawyer said that in the early hours of October 5, 1976, defendant was questioned by the police and made a statement concerning the charges then lodged against him, which involved possession of a forged $1,200 check from a Shoe Repair and attempted grand larceny arising out of an unsuccessful effort to cash that check. Thereafter defendant claims that he spoke with a Detective of the Nassau County Police Department, who solicited his co-operation and assistance in a pending homicide investigation.

Defendant was then taken to the headquarters of the District Attorney’s Rackets Bureau in Bethpage, where he met with an Assistant District Attorney. In order to effectuate the previously agreed upon bargain, there was an explanation on the conditions upon which defendant had agreed to co-operate, and obtained the consent of Inspector General of that office to defer execution of the violation of parole arrest warrant.

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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 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 criminal 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, 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. Criminal 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 a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, dated February 26, 1963, which denied after a hearing his application to vacate a judgment of said court, rendered May 26, 1961 after a jury trial, convicting him of robbery in the first degree (two counts); grand larceny in the first degree (two counts); and assault in the second degree (two counts); and sentencing him to serve concurrent prison terms of ten to twenty years on each robbery count; five to ten years on each larceny count; and two and one-half to five years on each assault count.

The criminal defendant, his brother, one RH and two others (MO and RW) were indicated in 1956 in a thirty-count indictment arising out of the hold-up of a card game. The identity of the defendant and his brother being unknown, they were referred to in the indictment as ‘John Doe’ and ‘Richard Roe.’ Soon after the commission of the crimes, MO and RW were apprehended, tried and convicted. On appeal by RW, the judgment of conviction as to him was reversed by this criminal court.

The codefendant RH was apprehended in May, 1960. Thereafter he and the police of Nassau County made a deal whereby, in return for his identification of the defendant and his brother, RH was allowed to plead guilty to attempted robbery in the third degree in satisfaction of the indictment, whereupon he received a very light sentence, to wit, 2 1/2 to 5 years as a second felony offender.

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This is a criminal case where the Relator was sentenced by the Nassau County Court as follows: For Robbery, 1st Degree, 30–60 years; Burglary, 1st Degree, 150–30 years; Grand Larceny, 1st Degree, 10–20 years; Assault, 2nd Degree, 5–10 years. The sentences were ordered to run concurrently.

A Nassau County Criminal lawyer said that on September 12, 1958, the defendant appeared without counsel for resentence before the Nassau County Court who vacated the 1948 sentence as illegal and resentenced the Relator as follows: Robbery, 1st Degree, sentence suspended; Burglary, 1st Degree, 10–20 years; Grand Larceny, 1st Degree, 2–10 years; Assault, 2nd Degree, sentence suspended.

The net result of the resentence process was the imposition of two prison sentences: for Burglary, 1st Degree, 10–20 years; for Grand Larceny, 1st Degree, 5–10 years. The other two sentences were suspended. The Court stated, however, that the sentence for Grand Larceny, 1st Degree, was to begin at the expiration of the sentence imposed for Burglary so that it became a consecutive sentence rather than a concurrent one as originally pronounced. Relator was to receive credit for all time already served.

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The petition before this Court arises in the wake of the dismissal of the referenced indictment returned in Nassau County upon a grand jury presentation by the Office of the Nassau County District Attorney. Both the “Office” and the Attorney are respondents here. The petitioners are the named defendants under the indictment which charged one count of grand larceny in the second degree under Penal Law 155.40(1). Following arraignment, each petitioner, as ‘ defendant, submitted an omnibus motion before the Nassau County Court, the Honorable Justice, presiding.

A Nassau County Criminal attorney said that the Justice decided defendants’ motion by an order dated October 22. 2010. which was entered on October 26, 2010, finding that the District Attorney indeed lacked the authority to appoint the prosecutor who presented the subject charges to the grand jury.

On appeal by the People, the Appellate Division. Second Department, on October 4.2011. affirmed the Order of the Justice. Thereafter, the People sought leave of the Court of Appeals to appeal the Order of the Appellate Division, which application was denied by Order dated March 30, 2012.

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The records reveal that the accused moves before the Court, pursuant to Criminal Procedure Law, section 440.20, in order to vacate the sentences imposed upon him pursuant to an Indictment. It appears that after having been found Guilty by a jury of the Crimes of Burglary in the Third Degree and Grand Larceny in the First Degree, he was sentenced to an indeterminate term of imprisonment for a maximum of ten years and a minimum of five years under each count, said sentences to be served consecutively. The accused asserts that these sentences are violative of former Penal Law Section 1938 which precludes double punishment for a single act, although ‘made criminal and punishable in different ways, by different provisions of law.’

In support of the foregoing contention, the accused alludes to People v. Savarese, which involved a kidnapping and a robbery. A Judge held that if all the acts performed were Necessary or Incidental to the commission of a single crime and were motivated by an intent to commit that crime, Then even if another separate crime be committed or another statute also be violated, he may not be doubly punished. If, however, any of the acts were not necessary to or incidental to the commission of the crime intended and those acts result in the commission of a separate crime, then he may be punished for each crime. Applying this rule, the Judge found that kidnapping a truck driver and his assistant while their truck was being hijacked was necessary and incidental to the robbery; therefore, though properly convicted of both kidnapping and robbery; the accused could not be punished for both crimes.

Court ruled that Section 1938 of the Former Penal Law provides, in part, as follows: ‘An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one’.

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The defendant was indicted by a Nassau County Grand Jury on September 23, 1985, charged with Grand larceny, Second Degree. In the indictment, it is alleged that, on or about July 15, 1985, the defendant stole a 1984 Pontiac Trans-Am from an automobile dealership in Hicksville, New York.

A Nassau County Criminal lawyer said that on August 19, 1985 the defendant was charged in a felony complaint with stealing the aforesaid Pontiac, and on September 23, 1985 he was indicted for Grand larceny in the Third Degree in connection with that alleged theft.” The People do not contest the factual allegations set forth by defense counsel only his legal conclusions.

The fundamental principle that a defendant may not be placed twice in jeopardy for the same offense is embodied in the federal and New York State constitutions, and in the statutory law of this state. In the instant case, there is no federal constitutional issue involved even though the 5th Amendment prohibition was ruled applicable to the states in several cases. Under the “dual sovereignties” doctrine, successive State and Federal prosecutions based on the same transaction or conduct do not offend the double jeopardy prohibition. Therefore, the challenge here rests solely upon the application of CPL 40.20

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