The defendant man contends that the evidence against him was insufficient, as a matter of law, to establish guilt beyond a reasonable doubt. Viewed in a light most favorable to the People, the record establishes that a woman, the complaining witness, lent money to the defendant. Concededly the defendant did not repay any part of the loan. Although the lender was motivated by a desire that the criminal defendant purchase a certain grocery store with the loan proceeds, the defendant’s failure to do so does not change the nature of the transaction.
The essence of the crime of larceny by embezzlement is the conversion by the embezzler of property belonging to another which has been entrusted to the embezzler to hold on behalf of the owner. There is a distinction between the refusal to pay a valid debt and the crime of larceny by embezzlement. If the money was not given to the criminal defendant in trust, he was free to use it for any purpose. On the record before us, the People failed to establish a fiduciary arrangement. As the record indicates, an interest bearing loan was intended by the parties, and upon delivery of the funds to the defendant they became his property. Thus there was no misappropriation of property from the owner and the mere failure to pay one’s debts is not a crime.
Accordingly the defendant’s conviction must be reversed and the indictment must be dismissed since the evidence is legally insufficient to establish beyond a reasonable doubt that the defendant was guilty of larceny by embezzlement.
In another larceny case, the respondent informed the Court of his conviction of serious offenses automatically resulting in the revocation of his license to practice law in New York State by letter. Effective July 27, 2007, he ceased the practice of law. The Grievance Committee for the Tenth Judicial District (hereinafter Grievance Committee) has now filed a motion to strike his name from the roll of attorneys, pursuant to Judiciary Law, upon the ground that he has been disbarred upon his conviction of grand larceny in the second degree, pursuant to Penal Law, a class C felony, and criminal possession of a forged instrument in the second degree.
On December 22, 2006, the respondent entered a plea of guilty in the County Court to one count of grand larceny in the second degree, pursuant to Penal Law, a class C felony, and one count of criminal possession of a forged instrument in the second degree, pursuant to Penal Law, a class D felony, in lieu of 50 counts, before a Honorable Judge.
During the plea allocution, the respondent admitted that, in or about May 2002, he obtained ownership of a house and real property located in Wyandanch, in Suffolk County, without the permission or authority of its true owner and by false pretenses. The respondent specifically admitted that he obtained ownership of that property by filing false deeds and other instruments with certain public offices, including the Suffolk County Clerk’s office. He filed those documents knowing that they were forged.
The respondent was sentenced on July 27, 2007, to a term of probation of five years, restitution in the sum of $534,462, and a mandatory DNA fee in the sum of $50.
Pursuant to Judiciary law, an attorney is automatically disbarred upon his or her conviction of a felony. The respondent was automatically disbarred on December 22, 2006, upon his entry of a plea of guilty to two New York State felonies. Accordingly, the Grievance Committee’s motion to strike the respondent’s name from the roll of attorneys is granted, without opposition.
If you were wrongfully accused and sentenced of larceny, consult the Suffolk County Grand Larceny Lawyer or the Suffolk County Robbery Attorney for your appeal. Stephen Bilkis and Associates can also offer the services of the Suffolk County Criminal Lawyer to help you fight your legal battle if you need to.