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CPL 20.40 (subd. 1, par. (a))


Records show that in this first case, it involves an appeal by the accused from a judgment, convicting her of forgery in the second degree (seven counts), grand larceny in the second degree (two counts) and grand larceny in the third degree (three counts), upon a jury verdict, and imposing sentence. After trial, accused now appeals before the court.

The court held that the jury could not have found by a preponderance of the evidence that venue was properly laid, since there was no indication of where the forgery occurred. The crime of forgery is complete when the instrument is made or altered with fraudulent intent, and the utterance of the instrument is not necessary. CPL 20.40 (subd. 1, par. (a)) requires that Conduct occur within a county sufficient to establish one element of the offense. Appellant resided in another County while the offices of the corporation on whose account the checks were drawn was located in New York County. There was no proof that any element of the crime of forgery, including the intent to forge, occurred in his County. The fact that some of the checks were deposited in banks in the County does not supply the necessary conduct evidencing the intent to forge, since forgery is not a ‘result’ offense. Thus, the seven counts in the indictment charging forgery in the second degree should be dismissed.

The only issue left to prove was whether there was the requisite intent to defraud. Proof of similar uncharged forgeries is usually admissible in order to prove the requisite intent and a common plan or scheme. However, in the case at bar, the introduction into evidence of the seven admittedly forged checks, together with the testimony of witnesses, provided enough material from which an intention to defraud could have been found by the jury. Thus, the prejudicial effect of such proof far outweighed its probative value on the issue of intent.

Furthermore, such evidence is inadmissible to refute the defense of authorization, especially in view of the fact that no charge was given directing the jury not to consider said evidence insofar as the defense of authorization is concerned. The prejudicial effect of the introduction into evidence of the more than 40 checks undoubtedly spilled over into the jury’s deliberations on the charges of grand larceny. Thus, she was deprived of a fair trial on those counts and should be afforded another trial thereon.

In this second case, the accused was charged with six counts involving robbery, grand larceny and burglary. He was convicted by a plea of guilty to robbery in the first degree and ultimately sentenced to five years’ imprisonment. The crime with which he is now charged involves the fruits of the crime to which he pleaded guilty. He is now charged with criminal possession of stolen property in the second degree, and moves for dismissal of the indictment pursuant to section 210.20 of the Criminal Procedure Law.

In support of his motion he urges dismissal on the ground of double jeopardy under section 165.60(2) of the Penal Law, which states that: ‘In any prosecution for criminal possession of stolen property, it is no defense that: (2) the defendant stole or participated in the larceny of the property; provided that a person may not be convicted of both larceny and criminal possession of stolen property with respect to the same property.’

Revised Penal Law (1965), section 165.45, eliminates the apparent inconsistency by defining the crime simply in terms of ‘possession’, clearly evincing an intent that one knowingly in possession of stolen property may be guilty of criminal possession whether or not he committed the basic larceny. In harmony with this revised definition and case law, Penal Law, section 165.60 negates theft or larceny of the property by the defendant as a defense and prohibits conviction for both larceny and criminal possession. The crime of robbery in the revised Penal Law is defined in terms of larceny: ‘a person forcibly steals property and commits robbery when, in the course of committing a Larceny, he uses or threatens the immediate use of physical force upon another person.’

Robbery is essentially a larceny accompanied by use of physical force. It is submitted the Daghita rationale is equally applicable to the crime of robbery as it is to larceny per se. By definition robbery necessarily encompasses larceny and certainly the addition of an element, i.e., physical force, to the larcenous taking, does not so alter the facts as to avoid the injustice worked by convicting defendant of both the crime of robbery and criminal possession of the stolen goods. In Heflin v. United States, the court indicated that absent an express contrary indication, a defendant charged under bank robbery statute may not be convicted for stealing and receiving the same goods. To hold the Penal Law section 165.60(2) speaks in terms of larceny exclusive of robbery and a former conviction of robbery is without its purview, would be harsh, unreasonable and anomalous. To avoid such result and to harmonize with case law, this court construes the statute as using the term larceny in a generic sense, as defined in Penal Law section 155.05, thereby precluding conviction for criminal possession whenever the defendant has been convicted of a crime incorporating the causative larceny as an essential element. Accused cannot, therefore, be convicted of criminal possession of the same property as obtained through a robbery for which he has been convicted.

Stephen Bilkis & Associates, with offices throughout New York, employs the services of its Nassau County Criminal Lawyers, and its New York Grand Larceny Attorneys, who are all seasoned and competent in their own fields, especially in cases involving assault, wire fraud, petit larceny and the likes.

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