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Court Discusses Elements of Larceny


A couple was on welfare. A New York Criminal Lawyer said they received a check from the New York Department of Social Services. They were entitled to a sum but they received a check that was over and above the sum they usually received.

On the back of the welfare check, there was an undertaking that they must inform the Department of Social Services if the check they received had a face value that was $5.00 more than the amount they used to receive.

The couple received the amount of $1500 more than they were entitled to. They cashed the checks even if they knew that the amounts were over and above the amount they were entitled to. The checks they cashed were received by them between 1969 and 1973.

The couple filed a motion to dismiss the indictment for grand larceny. They contend that they should be charged with misdemeanors only for each check that they cashed. They claimed that each check cashed was one count of fraud and misdemeanors can only be prosecuted within two years from the commission of the crime. They claim that all the checks they cashed were cashed beyond the two-year time limit for prosecuting misdemeanors.

A Nassau County Criminal Lawyer said the prosecution claims that the checks should not be prosecuted as separate crimes but all the checks were cashed under a common plan or scheme to defraud the Department of Social Services. They had only one and single intent and one fraudulent plan: to steal as much money from the government.

The only question is whether or not the couple was correctly indicted for grand larceny.

The Court held that the motion to dismiss should be denied for being premature. The minutes of Grand Jury were inspected and the inspection proved that the evidence presented before the Grand Jury was sufficient to sustain the charge for grand larceny.

First, the couple was clearly not entitled to the amount on the welfare checks they received. Second, the couple was aware that they should report to the Department of Social Services if they received a check that was $5.00 more than the last check they received. Third, if the couple’s income changes, they must report the change of their income to the Department of Social Services. Fourth, they cashed the check even though they knew that they had no right to cash the checks. Fifth, they cashed the checks. Sixth, they received the value of the checks and benefited from the value of the check. Seventh, the Department of Social Services was prejudiced because it lost the money which the couple took. Eighth, the value of the underserved benefits they received amounted to more than $250.

The only question now to be determined is if all the checks can be taken as one aggregate sum to qualify as one felony instead of numerous misdemeanors. The Court held that the only way that the checks can be lumped together is if there is proof or evidence that there was a common intent to defraud and a common scheme or plan to take the money that they did not deserve. Evidence of a single scheme or common intent can only be proved at trial. It cannot be proved by motion.

The Court resolved to deny the motion to dismiss. The Court directed that the case proceed to trial without prejudice to the couple raising the ground of failure to prove the common scheme or single plan in a demurrer to the evidence after the prosecution has finished its presentation of evidence.

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