People v. O'Brien
| Decision Date | 13 December 1979 |
| Citation | 423 N.Y.S.2d 135,102 Misc.2d 246 |
| Parties | The PEOPLE of the State of New York v. Joseph O'BRIEN, Defendant. |
| Court | New York District Court |
Denis Dillon, Dist. Atty., Nassau County, by James Watson, Asst. Dist. Atty., for plaintiff.
Lewis & Rosenthal, New York City, for defendant.
Decision on Motion
Defendant, Joseph O'Brien, is charged with violating Penal Law Section 155.25, Petit Larceny, a Class A misdemeanor. By the present motion, defendant seeks dismissal of the information upon the grounds that it, and the supporting deposition, are insufficient as a matter of law.
The District Attorney's version of the facts is as follows: Complainant, Malcolm Parisi, and the defendant had agreed in August, 1978, to operate a luncheonette-pizzeria business. This business was to be operated in corporate form. On August 11, 1978, Parisi and O'Brien agreed to incorporate and, on August 21, 1978, a corporation known as O'Brien and Parisi Corporation came into existence. The shares of Joseph O'Brien in this corporation were held in escrow pending his meeting a condition precedent, which was that O'Brien, who had operated the Golden Tornado Luncheonette under the name of O'Brien & Santora Corporation, was to buy out his late associate's widow, Antoinette Santora, before reorganizing under the name of O'Brien & Parisi Corporation. Not having satisfied this requirement, the defendant persuaded Mr. Parisi to open a joint bank account in connection with their business venture on or about August 11, 1978.
It is further alleged that from August 23rd, until October 12, 1978, monies were taken from this account and misappropriated by the defendant. Having discovered defendant's alleged misdeeds, Parisi swore out the criminal complaint herein.
The information herein contains the following recital: "Defendant stole certain property from Mr. Malcolm Parisi . . .". While the supporting deposition states that Parisi ". . . invested approximately $40,000 (a portion of which was allegedly stolen by defendant) in a Joint business venture ". (emphasis added) It is defendant's contention that one joint or common owner (Penal Law Section 155.00(5)(3), such as a partner (People v. Hart, 114 App.Div. 9, 99 N.Y.S. 758; People v. Dudley, Co.Ct., 97 N.Y.S.2d 358; People v. Dye, 134 Misc. 689, 236 N.Y.S. 357; see also 82 A.L.R.3d 822) or joint venturers cannot legally "steal" from another.
Whether or not the information and supporting deposition herein are legally sufficient is, in the Court's view, discernible upon resolution of one simple question; to wit: From whom or what entity were the funds misappropriated?
The fundamental inquiry herein is whether the characterization of defendant's transgressions (as found in the information, supporting deposition and pleadings herein) will support a charge of "larceny"? In that regard, the Court's attention has been directed to the definition of larceny contained in our Penal Law. Section 155.05(1) provides in pertinent part: "A person . . . commits larceny when . . . he wrongfully takes . . . property from an Owner thereof." (emphasis added) Defendant takes the position that complainant was not the "owner" (See Penal Law Section 155.00(5)), within the meaning of our law, of the funds on deposit in the Joint account. The People, predictably, contended that either complainant or O'Brien & Parisi Corporation was the owner of the funds. The dispute, therefore, which is the focus of this motion concerns complainant's status as an "owner" of property which is susceptible of larcenous misappropriation.
The defendant's contention, with which the Court must concur, is that the complainant is not an "owner" within the meaning of Penal Law Section 155.00(5). This statute provides the following definition of "owner": "When property is taken . . . an Owner thereof means any person who has a right to possession Superior to that of the taker . . . '(a) joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof ' ". Upon consideration of the arguments of respective counsel it is the Court's conclusion that complainant's possessory interest in the joint account was not superior to that of the defendant and, accordingly the information is deemed fatally defective.
In connection with this motion, the District Attorney and defendant's counsel have presented exhaustive...
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People v. Zinke
...§ 155.00, subd. 5, para. 3). In sum, co-partners have co-ownership interests, and one cannot steal his own property (People v. O'Brien, 102 Misc.2d 246, 423 N.Y.S.2d 135) [one party to joint bank account cannot criminally misappropriate Differing theories have been employed to give substanc......
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People v. Zinke
...that New York has consistently followed the common law rule (see, People v. Hart, 114 App.Div. 9, 99 N.Y.S. 758; People v. O'Brien, 102 Misc.2d 246, 423 N.Y.S.2d 135; People v. Dye, 134 Misc. 689, 236 N.Y.S. 357) and points to the Legislature's rejection, in enacting the current Penal Law i......
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People v. Wright, 2006 NY Slip Op 50696(U) (NY 4/24/2006)
...he steals property. An individual commits a larceny when he or she wrongfully takes property from an owner thereof. People v. O'Brien, 102 Misc 2d 246, 423 N.Y.S. 2d 135 (Nassau County 1979). A person may be convicted of a larceny even if evidence does not establish an intent to steal as lo......
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People v. Carandang
...the checking account for business purposes only; defendant was not granted any interest in the firm's funds ( compare People v. O'Brien, 102 Misc.2d 246, 423 N.Y.S.2d 135 [Nassau Dist. Ct. 1979] [taking from joint bank account by one of the joint owners is not larceny] ). Regardless of whet......