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Appellate Court Reverses Indictment for Larceny Charges


The respondent and defendant in this case is M.K. The People of the State of New York are the appellants in the case. The Court of Appeals in the state of New York is hearing this case. There were two indictments filed against the defendant, Kirkup, in the Extraordinary Special and the Trial Terms of the Supreme Court of Suffolk County. Indictment 7256 charged the defendant with committing the crime of conspiracy. Indictment 7258 charges the defendant of violating section 1864 of the Penal Law.

Case Background

A New York Criminal Lawyer said the People of the State of New York submitted evidence to the Grand Jury that showed that A.F., who is a pharmacist that operates a small retail drug store in Suffolk County along with his successors in interest had ordered drugs from pharmaceutical houses solely for the use of the Suffolk County Home, but in actuality for selling to the public.

The scheme involved Freistadt and his successors obtained the drugs at an institutional price that was a lot lower than the price paid by retail druggists. The defendant M.K. as a favor to his long time friend A.F. allowed him to use the County Home as a front for his scheme. M.K. was the Commissioner of Public Welfare for Suffolk County.

Case Discussion

A New York Criminal Lawyer said the Penal Law provides that if two or more people conspire to commit a crime or cheat and defraud another individual by any means that is considered criminal or to commit an act that is injurious to the health of the public, each will be guilty of a misdemeanor.

The Grand Jury concluded that all of the elements of a crime were present and the defendant Kirkup conspired with the druggists to commit a crime. It is obvious that the druggists needed help from the defendant in order for the scheme to work.

On appeal, the Appellate Division found that there had been no larceny shown in the case as there was no proof the drug houses had been cheated. A New York Drug Possession Lawyer said no evidence was provided to show that the companies did not know about the operation of the scheme to obtain the institutional discount.

However, even Freistadt thought it was necessary to involve a scheme for the prices and indicated that he used cashiers checks so the drug companies would not know that the drugs were intended for use in his pharmacy. He also made sure that the drugs ordered were seen to be intended for the County Home and the drugs were even delivered there.

Case Decision

The Appellate Division dismissed the indictment for conspiracy against the defendant. We find that this was the wrong thing to do and therefore reinstate the indictment of conspiracy. We also find that the indictment against the defendant for violation of section 1864 of Penal Law must be reinstated as well. This section provides that a person who works as a public officer and wrongfully obtains, receives, converts, disposes of or pays out or aids and abets another in receiving, obtaining, disposing, converting, or paying out of money or property is guilty of a felony. As the defendant held a public position during the conspiracy, this indictment will be reinstated as well.

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