85 N.Y.2d 609 (1995)

A conviction for larceny by false promise requires evidence establishing that the facts and circumstances are wholly consistent with guilty intent and wholly inconsistent with innocent intent, excluding to a moral certainty every hypothesis except the defendant’s intention not to perform the promise; mere non-performance is insufficient to infer guilt.

Summary

Robert Norman and John King were convicted of larceny-related charges for failing to deliver goods after receiving payment. Norman sold log home kits but failed to deliver to customers, using their money for personal debts. King sold a used car but never delivered it or provided a title. The New York Court of Appeals addressed the distinction between larceny by false promise and false pretenses, and the evidentiary burden for false promise, holding that the evidence against Norman was sufficient for larceny by false promise, while King’s conviction for false pretenses was upheld. The Court clarified the standard of appellate review for larceny by false promise convictions.

Facts

Robert Norman operated a log home kit business. The Ganas contracted to buy a kit for $20,325, paying in full after Norman pressured them. Norman failed to deliver, offering excuses. He later admitted spending their money on personal and business debts. Evidence showed Norman had other unfilled orders and shut down his mill before taking the Ganas’ money.

John King, a used car dealer, agreed to sell Carol Bondy a Bronco for $4,977.50. Bondy paid in full, but King never delivered the vehicle or provided a title, claiming he hadn’t received full payment and later suing Bondy. Investigation revealed no Bronco was ever registered to King.

Procedural History

Norman was convicted of grand larceny and criminal possession of stolen property. The Appellate Division reversed, finding insufficient evidence of intent. The People appealed to the Court of Appeals.

King was convicted of grand larceny. The Appellate Division affirmed. King appealed to the Court of Appeals.

Issue(s)

1. Whether the evidence against Norman was sufficient to establish larceny by false promise, considering the heightened evidentiary standard.

2. Whether King’s conviction for larceny by false pretenses was proper, or whether the case should have been submitted as larceny by false promise, thus requiring a higher burden of proof.

Holding

1. Yes, because the evidence, viewed favorably to the People, allowed a rational jury to conclude that Norman intended not to deliver the log cabin kit when he took the Ganas’ money.

2. Yes, because the evidence supported a conviction for larceny by false pretenses based on King’s misrepresentation that he owned the vehicle and could transfer title.

Court’s Reasoning

The Court distinguished between larceny by false promise (a false statement of future intent) and false pretenses (a false statement of present or past fact). For larceny by false promise, Penal Law § 155.05(2)(d) requires evidence “establishing that the facts and circumstances of the case are wholly consistent with guilty intent…and excluding to a moral certainty every hypothesis except that of the defendant’s intention or belief that the promise would not be performed.” The Court emphasized that mere non-performance is insufficient to prove larceny by false promise.

Regarding Norman, the Court found sufficient evidence of intent not to perform, including his financial state, closure of his mill, and false statements to investigators. The Court clarified that appellate review assesses whether the inference of wrongful intent logically flows from the proven facts. The “moral certainty” standard is for the trier of fact, not the appellate court reviewing for legal sufficiency. The Court noted the jury could consider Norman’s intent when he received the Ganas’ money, not just when the contract was signed.

Regarding King, the Court held he misrepresented that he owned the vehicle, justifying the conviction for false pretenses. King’s actions implied he had the authority to sell the car, fulfilling the elements of false pretenses. The prosecution had the right to prosecute under the theory best supported by the facts. Dissent argued the cases were civil matters and the majority lowered the standard of review.