New York Law Review

Tag: Larceny

  • People v. Roth, 52 N.Y.2d 300 (1981): Embezzlement Requires Conversion of Another’s Property

    People v. Roth, 52 N.Y.2d 300 (1981)

    To sustain a conviction for larceny by embezzlement, the defendant must have converted property belonging to another that was entrusted to the defendant on behalf of the owner.

    Summary

    Roth, the owner-operator of a nursing home, was convicted of larceny for failing to fully refund residents the difference between private rates they paid before Medicare approval and the lower Medicare rates. The New York Court of Appeals reversed, holding that the funds Roth was convicted of embezzling were not the property of the residents. The court reasoned that once the residents paid the private rates, the money became Roth’s property, and his failure to refund the difference was a breach of contract, not embezzlement.

    Facts

    Roth owned and operated the Endicott Nursing Home, which was funded by private resident payments, Medicaid, and Medicare. To participate in Medicare, Roth had to agree to charge Medicare-eligible residents no more than the Medicare rate. Pending Medicare approval, the home charged private rates, which were higher. Upon Medicare approval, Roth was required to refund the difference between the private and Medicare rates to the residents. Roth made only partial or no refunds. He was then convicted of larceny for embezzling funds he should have refunded.

    Procedural History

    The Broome County Court convicted Roth of larceny in the second degree. The Appellate Division affirmed the judgment. Roth appealed to the New York Court of Appeals.

    Issue(s)

    Whether the funds that Roth was convicted of embezzling were held by him on behalf of the nursing home residents, or whether those monies were in fact owned by Roth.

    Holding

    No, because the money which Roth was convicted of stealing never belonged to the residents of his nursing home, nor was it entrusted to Roth to hold on behalf of the residents.

    Court’s Reasoning

    The court distinguished between refusing to pay a valid debt and the crime of larceny by embezzlement. The court stated, “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.” When the residents paid the private rate, the money became Roth’s property, not held in trust. The obligation to refund upon Medicare approval did not change the fact that the funds were Roth’s. The court emphasized that Medicare payments to Roth did not alter this, as they were reimbursements for refunds he should have already made from his own funds. The court stated, “The funds given defendant by Blue Cross on behalf of Medicare were not intended to serve as the source of the refunds due the residents of the home. Rather, the money from Blue Cross was intended to reimburse defendant for the money which he supposedly had previously refunded to the residents from his own funds.” The court distinguished the situation from one where funds are given to be held in trust. Since no trust was created, the residents were not owners of the funds in Roth’s hands, and therefore, he could not be convicted of larceny by embezzlement. The court noted, “It was within the power of the parties to the provider agreement to have created a trust by their agreement, and had they done so defendant might well have been subject to prosecution for the wrongful withholding of trust funds. The parties failed to create such a trust, however, and thus the residents cannot be deemed the owners of any moneys in the hands of the defendant. Accordingly, defendant’s conviction for larceny cannot stand.”

  • People v. Dorta, 46 N.Y.2d 945 (1979): Inconsistent Verdicts and the Essential Element of Larceny in Robbery

    People v. Dorta, 46 N.Y.2d 945 (1979)

    A guilty verdict for robbery is inconsistent and cannot stand if the defendant is acquitted of the underlying larceny, an essential element of the robbery crime.

    Summary

    In People v. Dorta, the New York Court of Appeals reversed the defendant’s robbery conviction because the jury’s verdict was internally inconsistent. The jury acquitted the defendant of all larceny counts but found him guilty of third-degree robbery. The court held that because larceny is an essential element of robbery, the acquittal on the larceny counts directly contradicted the guilty verdict on the robbery count. The court emphasized that the jury was not instructed that a guilty verdict on the robbery charge would negate the need to consider the larceny charges and had, in fact, been instructed that a finding of no larceny required acquittal on all charges. Thus, the robbery conviction was vacated, and the indictment was dismissed.

    Facts

    The specific facts of the alleged robbery and larceny are not detailed in the short opinion. However, the key fact is that the defendant was charged with both robbery and larceny in relation to a single incident. The jury then reached seemingly contradictory verdicts: not guilty on all larceny charges and guilty on the robbery charge.

    Procedural History

    The defendant was convicted of robbery in the trial court. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed the Appellate Division’s order, vacated the judgment of conviction, and dismissed the indictment.

    Issue(s)

    Whether a guilty verdict for robbery can stand when the defendant has been acquitted of all underlying larceny charges, given that larceny is an essential element of robbery?

    Holding

    No, because the acquittal on the larceny counts directly contradicts the guilty verdict on the robbery count, rendering the verdict internally inconsistent and logically unsound.

    Court’s Reasoning

    The Court of Appeals reasoned that the jury’s verdict was “internally self-contradictory both logically and pursuant to the charge of the court.” The court emphasized the fundamental principle that robbery requires larceny as a necessary element. Therefore, finding the defendant not guilty of larceny while simultaneously finding him guilty of robbery creates an irreconcilable inconsistency. The court noted that the jury was instructed that if they found no larceny, they “must acquit on all charges.” The Court cited People v. Cole, 35 N.Y.2d 911 to bolster the holding. The court stated: “By acquitting defendant of all the larceny counts the verdict of guilty of robbery in the third degree was contradicted, since the robbery could not have occurred unless, as an essential element of the crime, there had been a larceny in some degree.” Because the jury was not instructed that a guilty verdict on robbery would render the larceny counts moot, and because they were specifically instructed to acquit on all charges if no larceny was found, the contradictory verdicts could not stand. This decision highlights the importance of clear and unambiguous jury instructions, especially when dealing with crimes that have overlapping or dependent elements.

  • People v. Olivo, 34 N.Y.2d 426 (1974): Larceny Requires Dominion and Control, Not Necessarily Asportation

    People v. Olivo, 34 N.Y.2d 426 (1974)

    Larceny is complete when a person exercises dominion and control over another’s property with the intent to steal it, even if the property is not moved from its original location.

    Summary

    The New York Court of Appeals held that a defendant could be convicted of larceny for starting a car with the intent to steal it, even if the car was not actually moved. The Court reasoned that starting the car demonstrated sufficient dominion and control over the vehicle to constitute a “taking” under the state’s larceny statute. The decision emphasized that modern larceny statutes focus on the exercise of control, not merely the physical movement (asportation) of the property. The Court considered the broad language of New York’s Penal Law, which prohibits the wrongful taking, obtaining, or withholding of property.

    Facts

    Police officers observed the defendant in a parked car, with the headlights on and the engine running. The wheels were turned as if the car was about to move. The defendant could not produce a valid registration for the vehicle, and it was later determined that the car belonged to someone else. The car’s vent window had been forced, and the ignition switch had been tampered with. The defendant was found with burglary tools and a hypodermic needle inside the car.

    Procedural History

    The defendant was charged with grand larceny in the second degree (later reduced to third degree) and criminal possession of burglary tools and a hypodermic instrument. He was convicted on all charges in a jury trial. The Appellate Division affirmed the convictions. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether a completed larceny occurs when a person starts a car with the intent to steal it, but does not move the vehicle.

    Holding

    Yes, because exercising dominion and control over an automobile by starting it with the intent to steal constitutes a completed larceny under New York law, even if the vehicle is not moved.

    Court’s Reasoning

    The Court reasoned that asportation, or the carrying away of goods, is not always a necessary element of larceny. The Court referenced Harrison v. People, 50 N.Y. 518, which held that even a slight movement of a stolen wallet was sufficient to constitute larceny. The Court emphasized the importance of possession and control, stating that “possession, so far as this offense is concerned, is the having or holding or detention of property in one’s power or command.”

    The Court distinguished the case from situations involving inert objects like wallets, arguing that an automobile is an instrument of transportation and that starting the engine signifies complete control. The Court drew an analogy to drunk driving cases, where operation of a vehicle is established when a person is behind the wheel with the engine running, regardless of whether the car is moving.

    The Court emphasized that the state’s larceny statute broadly prohibits the wrongful taking, obtaining, or withholding of another’s property. It noted that the definition of “obtain” includes “the bringing about of a transfer or purported transfer of property… whether to the obtainer or another.” The Court concluded that a person transfers an instrument of transportation to himself when he commences to operate it for its intended purpose, thus exercising dominion and control over the property. “To require that the vehicle be moved by the operator is to slavishly adhere to the auxiliary common-law element of asportation which is simply not necessary to the finding of the primary elements of dominion and control where an activated automobile is concerned.”

  • People v. Lo Monaco, 37 N.Y.2d 463 (1975): Thief and Receiver Are Not Accomplices Absent Prior Agreement

    People v. Lo Monaco, 37 N.Y.2d 463 (1975)

    Under New York law, a receiver of stolen goods is not automatically deemed an accomplice of the thief in the underlying larceny, unless there is evidence of a prior agreement or arrangement between them to commit the crime.

    Summary

    Lo Monaco was convicted of petit larceny for stealing jewelry. At trial, Lo Monaco, a receiver of stolen goods, testified against the defendant in exchange for immunity. Lo Monaco testified that he bought the jewelry from the defendant, who said it came from the “south shore.” The defense requested a jury instruction that Lo Monaco could be considered an accomplice, requiring corroboration of his testimony. The Court of Appeals held that Lo Monaco was not an accomplice because there was no evidence of a prior agreement or arrangement between him and the defendant, preserving the distinction between the crimes of theft and receiving stolen property.

    Facts

    The defendant was accused of stealing jewelry from a residence. Police were led to Lo Monaco, a known receiver of stolen goods, by a confidential informant. Lo Monaco testified that he bought jewelry from the defendant at the defendant’s apartment after receiving a phone call about stolen property. The defendant told Lo Monaco the jewelry came from the “south shore” near Woodmere or Lawrence. Lo Monaco admitted to buying jewelry from the defendant on multiple occasions, but stated there was no prior agreement regarding this particular theft.

    Procedural History

    The defendant was convicted of petit larceny after a jury trial. The defendant appealed, arguing that the trial court erred in denying his request to instruct the jury that Lo Monaco could be considered an accomplice, requiring corroboration of his testimony. The Appellate Division affirmed the conviction. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether, under CPL 60.22, a receiver of stolen goods is automatically considered an accomplice of the thief in the underlying larceny, thus requiring corroboration of the receiver’s testimony.

    Holding

    1. No, because CPL 60.22 was not intended to eliminate the distinction between the crimes of theft and receiving stolen property in the absence of a prior agreement or arrangement between the thief and the receiver.

    Court’s Reasoning

    The court analyzed the definition of “accomplice” under CPL 60.22(2), which states an accomplice is someone who participated in the offense charged or an offense based on the same facts or conduct. The court acknowledged that Lo Monaco could be viewed, in a literal sense, as participating in an offense (criminal possession of stolen property) based on the same facts as the larceny. However, the court emphasized that statutes should be interpreted in light of their purpose, not just their literal wording. Quoting Justice Learned Hand, the court stated, “There is no surer way to misread any document than to read it literally.” The court noted the unique relationship between a thief and a receiver, emphasizing that the crimes are typically separate in time and components. Historically, New York law had addressed this relationship specifically. Following People v. Kupperschmidt, which held a thief was an accomplice of the receiver, the legislature enacted section 1308-a of the Penal Law, explicitly stating a thief was not an accomplice of the receiver. This was carried over into section 165.65 of the new Penal Law. The court concluded that CPL 60.22 was not intended to eliminate this established separation between the crimes of theft and receiving. The court stated, “We cannot agree, therefore, with the proposition urged on us that CPL 60.22 (subd. 2, par. [b]) automatically makes every receiver an accomplice of the thief notwithstanding the absence of proof that the receiver procured or otherwise aided or abetted the thief in the commission of the larceny.” The court noted that had there been any evidence of a prior agreement between the defendant and Lo Monaco, the result would have been different.

  • People v. Sherman, 27 N.Y.2d 144 (1970): Scope of Conspiracy Conviction When Underlying Offense is Invalid

    People v. Sherman, 27 N.Y.2d 144 (1970)

    A conviction for conspiracy to commit multiple offenses can stand even if the conviction for one of the underlying offenses is overturned due to a technicality, provided there is sufficient proof of an agreement to commit at least one of the other offenses.

    Summary

    Defendants were convicted of conspiracy to commit bribery and larceny, as well as substantive counts of bribery and attempted grand larceny. The Court of Appeals modified the judgments, reversing the bribery convictions because the defendants were not public servants as defined by the bribery statute. However, the court upheld the conspiracy convictions, reasoning that the jury’s finding of conspiracy could rest on the agreement to commit larceny, which was supported by evidence and the attempted grand larceny convictions. The case was remitted for resentencing due to the vacated bribery sentences.

    Facts

    The defendants were indicted for conspiracy to commit bribery and larceny, along with substantive counts of bribery and attempted grand larceny. The specific facts underlying the charges are not detailed in this memorandum opinion, but the charges stemmed from a single course of conduct. The key fact is that the defendants’ status did not meet the definition of a public servant for the purposes of the bribery statute.

    Procedural History

    The defendants were convicted in County Court on all charges. They appealed to the Court of Appeals of New York. The Court of Appeals modified the judgment, reversing the bribery convictions but affirming the conspiracy and attempted grand larceny convictions. The case was then remitted to the County Court for reconsideration of sentencing.

    Issue(s)

    Whether a conviction for conspiracy to commit multiple offenses must be reversed if the conviction for one of the underlying offenses is overturned due to a technicality, even if there is sufficient evidence to support a finding of conspiracy to commit at least one of the other offenses.

    Holding

    No, because if an indictment charges conspiracy to commit a crime and refers to several separate offenses as purposes of the conspiracy, a conviction may rest on proof of an agreement to commit any one of the offenses without proof of an agreement to commit the others.

    Court’s Reasoning

    The Court of Appeals reasoned that the conspiracy conviction could stand because the jury found the defendants guilty of conspiring to commit both bribery and larceny. The court acknowledged that the bribery convictions were improper because the defendants did not qualify as “public servants” under the relevant statute. However, this was deemed a “technical classification of the offense and not because of any infirmity in the proof” regarding the agreement to commit bribery. The court emphasized that there was independent evidence and jury findings (in the form of the attempted grand larceny convictions) to support the conclusion that the defendants conspired to commit larceny. The court cited precedent, including People v. Trammell, stating that a conspiracy conviction can rest on proof of an agreement to commit any one of the offenses listed in the indictment, even if not all are proven. The court stated: “Since the jury concluded that the defendants had committed conspiracy to commit bribery and larceny, the fact that it is now determined that the defendants may not be prosecuted for bribery, only because of the technical classification of the offense and not because of any infirmity in the proof, does not upset the conclusion that defendants conspired to commit larceny.” This reasoning prevents defendants who genuinely conspired to commit crimes from escaping punishment based on technical defects in one of the underlying charges, so long as the conspiracy involved another valid offense. The court remitted for resentencing to allow the lower court to adjust the penalties in light of the vacated bribery charges.

  • People v. Borrero, 26 N.Y.2d 430 (1970): Establishing Intent for Burglar’s Tools Possession

    People v. Borrero, 26 N.Y.2d 430 (1970)

    Circumstantial evidence can establish the intent to use an instrument for an unlawful purpose in a charge of possession of burglar’s tools, even without direct proof of ownership of the property targeted.

    Summary

    This case addresses the level of proof required to convict someone for possession of burglar’s tools, specifically concerning intent. Borrero was observed prying at a car window with a screwdriver, and Lugo was seen using a wire to try to enter a car. The court held that while screwdrivers and wires are not inherently burglar’s tools, their use under suspicious circumstances can provide sufficient circumstantial evidence to infer intent to commit a crime, even if the prosecution doesn’t directly prove the defendant didn’t own the car. The court emphasized that the evidence, viewed through “common human experience,” must lead a reasonable person to conclude guilt beyond a reasonable doubt.

    Facts

    In Borrero, a detective saw Borrero using a screwdriver on a car vent window. After a brief conversation with another man, Borrero hid the screwdriver and walked away. He was arrested and found to possess heroin. In Lugo, Lugo and an accomplice were observed looking into cars. Lugo inserted a wire into a car window while his accomplice acted as a lookout. They stopped when people approached the car with keys and walked away. Lugo confessed to possessing the tool.

    Procedural History

    Borrero was convicted of possession of burglar’s tools and narcotics. The Appellate Term reversed the burglar’s tools conviction. Lugo was convicted of possession of burglar’s tools, and the Appellate Term affirmed.

    Issue(s)

    Whether circumstantial evidence, in the absence of direct proof of ownership of the targeted vehicle, can sufficiently establish the intent to use possessed tools in the commission of a larceny offense, thus warranting a conviction for possession of burglar’s tools under New York Penal Law § 140.35.

    Holding

    Yes, because the surrounding circumstances can reasonably lead to the inference that the defendant intended to use the tools for an unlawful purpose. In Borrero, the Appellate Term’s judgment was reversed and remitted for factual determination. In Lugo, the judgment was affirmed.

    Court’s Reasoning

    The court reasoned that while items like screwdrivers and wires are not inherently burglar’s tools, their use in suspicious circumstances can establish the necessary intent for a conviction under Penal Law § 140.35. The court acknowledged the standard for circumstantial evidence, stating that the hypothesis of guilt should flow naturally from the facts and be consistent with guilt and inconsistent with innocence. However, the court clarified that this test should not replace reasoned thought, quoting People v. Wachowicz, “In the end, it is a question whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts.” The court distinguished these cases from mere possession, noting the defendants were essentially “caught in the act.” While direct proof of ownership is preferable, the court held that lack of ownership could be inferred from the circumstances. Regarding Borrero, the court stated that the defendant’s actions, including ceasing his actions and hiding the screwdriver, suggest intent to break into another’s car, as “common experience would suggest the owner of the car would have a locksmith or mechanic open the car, rather than pay the cost of a new window and its installation.” Regarding Lugo, the court found it “ludicrous” to believe his actions were consistent with innocence.

  • People v. Crego, 297 N.Y.S.2d 443 (1969): Determining Market Value of Stolen Goods

    People v. Crego, 297 N.Y.S.2d 443 (N.Y. 1969)

    The market value of stolen property, for purposes of determining the degree of larceny, is the price a willing buyer would pay at the time and place of the theft, considering factors such as condition, use, and any damage incurred.

    Summary

    The defendant was convicted of grand larceny for stealing a water pump. The key issue on appeal was whether the prosecution adequately proved the pump’s value exceeded $100, the threshold for grand larceny. The New York Court of Appeals reversed the conviction, holding that the trial court failed to properly determine the market value of the pump at the time of the theft. The court emphasized that the pump’s value should reflect its condition after attempted installation and any resulting damage, not simply its original purchase price.

    Facts

    Lloyd Crego purchased a water pump for $124 from J & R Plumbing. His son-in-law, Terpening, an employee of the plumbing company, along with Crego’s son, began installing the pump. During the installation, they bent the copper tubing, damaged the gauge, and nicked the pump. The installation was abandoned, and the pump was left uninstalled. The following day, the pump was discovered missing. The defendant was later apprehended and convicted of grand larceny.

    Procedural History

    The defendant was convicted of grand larceny in the second degree. He appealed, arguing that the prosecution failed to adequately prove the value of the stolen pump exceeded $100. The New York Court of Appeals reviewed the case.

    Issue(s)

    Whether the prosecution presented sufficient evidence to establish that the market value of the stolen water pump exceeded $100 at the time of the theft, considering its condition and any damage incurred during a failed installation attempt.

    Holding

    No, because the prosecution failed to adequately account for the pump’s condition and any damage incurred during the attempted installation when determining its value at the time of the theft. The original purchase price was insufficient to establish market value under these circumstances.

    Court’s Reasoning

    The Court of Appeals emphasized that, per People v. Irrizari, the relevant measure of value in a larceny case is the market value of the stolen item at the time of the theft – what the thief would have to pay to replace the item in the marketplace. The court reasoned that the original purchase price is merely some evidence of value, but not conclusive, especially when the item’s condition has changed after the sale. The court noted that the pump had been subjected to a botched installation attempt, resulting in damage. Justice Burke stated, “Since we stated in Irrizari that the price for which an item is sold in a particular store is some evidence but not conclusive proof of its value when stolen from that store, it necessarily follows that the original cost of an item is not proof of its value some five days after the goods have left the store.” Furthermore, the court referenced Parmenter v. Fitzpatrick and People v. Liquori in asserting that an allowance must be made for the fact that the pump, when taken, was no longer new. The court criticized the prosecution’s expert witness for failing to assess the pump’s value after the attempted installation and damage, noting the witness admitted he didn’t know the condition of the pump at the time it was stolen. The court concluded that because the pump’s value was crucial in determining the degree of the offense, the conviction must be reversed and a new trial ordered to properly assess the pump’s market value at the time of the theft.

  • People v. Volpe, 20 N.Y.2d 10 (1967): Inference of Guilt from Possession of Stolen Goods

    People v. Volpe, 20 N.Y.2d 10 (1967)

    The inference of guilt arising from the recent and exclusive possession of stolen goods must be cautiously applied and requires evidence of truly substantial character to support a conviction, especially when the defendant provides a plausible explanation for their possession.

    Summary

    John Volpe was convicted of petit larceny based on the alleged theft of a crane. The prosecution relied on the principle that recent and exclusive possession of stolen goods, without adequate explanation, raises a presumption of guilt. The Court of Appeals reversed the conviction, holding that the evidence was insufficient to prove guilt beyond a reasonable doubt. The court reasoned that Volpe’s possession of the crane two weeks after the theft, his mounting it on his truck in plain view, and his explanation of purchasing it from a junk yard, weakened the presumption of guilt. The court also found his inconsistent statements to the detective not clearly indicative of guilt, particularly given that he owned two similar cranes.

    Facts

    Collazo and Colon reported a crane attached to their truck stolen. Two weeks later, Collazo identified his crane mounted on a truck belonging to Volpe parked near Collazo’s garage. Detective Hughes questioned Volpe, who initially claimed to have purchased the crane at an Esso station, providing a bill of sale. Volpe later admitted he bought the crane from “Butchy Pantorre” for $75 at a junk yard. Volpe testified he bought the crane from Pantorre for $25 as junk and that his friend, Bastogne, was with him and could corroborate the story. The crane needed significant repair before it was functional.

    Procedural History

    Volpe was convicted of petit larceny in the Criminal Court of the City of New York, Bronx County. He appealed the conviction, arguing insufficient evidence to prove guilt beyond a reasonable doubt. The New York Court of Appeals reversed the conviction and dismissed the indictment.

    Issue(s)

    Whether the evidence, specifically the defendant’s possession of the allegedly stolen crane and inconsistent explanations, was sufficient to prove petit larceny beyond a reasonable doubt.

    Holding

    No, because the inference of guilt arising from recent possession of stolen goods was weakened by the circumstances of Volpe’s possession and his explanation for it. The inconsistent statements were not clearly indicative of guilt, and the prosecution offered no substantial corroborating evidence.

    Court’s Reasoning

    The court emphasized that the rule regarding possession of recently stolen goods should be applied cautiously. Citing People v. Richardson, the court noted that the concept of “recent” depends on the circumstances. Volpe’s actions differed from typical thief behavior; he didn’t try to quickly dispose of the crane. Instead, he mounted it on his truck in public view, near the owner’s garage, weakening the presumption of guilt. The court also considered Volpe’s explanation, finding it not entirely inadequate, especially since he presented a corroborating witness. Regarding Volpe’s inconsistent explanations, the court found them not definitively indicative of guilt, stating, “To draw an inference of guilt from inconsistent explanations, it must be absolutely clear that they are inconsistent. An inference may not be based upon another inference.” The court, quoting People v. Leyra, acknowledged the weakness of evidence reflecting a consciousness of guilt when unsupported by other substantial proof. The court concluded that the prosecution’s evidence lacked the “proof of a truly substantial character” required to sustain a conviction. Even if Pantorre testified against Volpe, the evidence’s sufficiency would remain questionable, making a new trial unwarranted.