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The indictment should be dismissed.


The indictment contains 12 counts pertaining to two transactions (the sale of two stolen automobiles from the premises of the defendant man’s gas station). The jury found the defendant guilty of two counts of grand larceny in the first degree, of two counts of criminal buying and receiving stolen property and of two counts criminal receiving and withholding stolen property.

At the threshold, the defendant contends that he has been convicted of crimes for which he has not been indicted. Clearly, his position is untenable and his reasoning fallacious. The cases holding that convictions must be reversed where the defendants charged in common law language have been convicted of the statutory crimes enumerated in the Penal Law are not applicable. The evidence showed that the defendant was a dealer in automobiles and, consequently, the Presumption embodied which contains a mere rule of evidence, could be drawn by the jury. Of course, that inference is implicit in its verdict. However, the presumption is not the foundation underlying a statutory crime and the language contained therein does not have to appear in the indictment.

The defendant raises the point that simultaneous verdicts of guilty of grand larceny and guilty of criminal receiving and concealing the property involved in the grand larceny cannot stand. Although a thief cannot be convicted of grand larceny and criminally receiving and concealing the same stolen property, a non-accessory to the original taking may be convicted of grand larceny by false pretense, for fraudulently obtaining the proceeds from the sale of the stolen item, and of receiving and concealing said property. Conviction on both counts is not inconsistent.

In this connection the trial court correctly instructed the jury as to the element of reliance in proving larceny by false pretense. The authorities agree that partial reliance on a false pretense, if it contributed to the larceny, is sufficient.

The question of whether the complainant established a legitimate case became moot after the defendant took the stand. The evidence supplied by the defendant cured any defect in the complainant’s case and may be considered in determining whether the judgment of conviction should be affirmed.

The defendant’s other contentions have been examined and was found no reason to disturb the judgment of conviction.

Another defendant was indicted for robbery in the first degree, grand larceny in the first degree and assault in the second degree. He was arraigned and pleaded not guilty. His case appeared on the trial calendar, and thereafter was marked ready and passed subject to the completion of the trial of a robbery indictment pending against him in the former County Court. On May 9, 1960, the case was marked off the calendar because the defendant had been committed to a State Hospital by order of the County Court. On August 24, 1962, defendant was released from the State Hospital and remanded to Queens County, for trial on the indictment pending there. The defendant pleaded guilty in County Supreme Court to robbery in the second degree, and he was sentenced to serve 7 1/2 to 10 years in prison.

Despite the fact that the County District Attorney had filed a detainer at the State Hospital, it failed to notify him that the defendant had been issued a certificate of recovery and returned to Queens County. The County District Attorney did not learn of the defendant’s release therefrom until he was notified by the warden of the prison that the defendant had commenced the service of the sentence imposed in Queens County. The defendant was not tried in Kings County until October 11, 1963, when he pleaded guilty to attempted robbery in the third degree, unarmed.

The 14-month delay between the time the defendant was released from the State Hospital and the time he was tried in Kings County denied him due process and his right to a speedy trial under the Code of Criminal Procedure. Since both the District Attorney and the State Hospital officials are agents of the State, the fault of the State Hospital officials in not notifying the District Attorney as to the defendant’s release should not be charged to the prisoner, but to the State. The State has the duty of seeing that the defendant is speedily brought to trial. The complainant has failed to establish good cause for the delay, and the defendant in no manner waived his right to a speedy trial. His failure to demand final disposition of the charges under the Code of Criminal Procedure did not waived his right and he did not waive it by pleading guilty. Accordingly, the indictment should be dismissed.

Big portion of the human population are not fully aware of their rights as an individual and this sometimes lead us to legal troubles. If you want to defend yourself accordingly, the Kings County Grand Larceny Attorney or the Kings County Robbery Lawyer together with the Kings County Criminal Attorney from Stephen Bilkis and Associates are the best options you have.

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