People v. Drake

• Decision Date: 10 March 1983
• Citation: People v. Drake, 461 N.Y.S.2d 509, 92 A.D.2d 1011 (N.Y. App. Div. 1983)
• Parties: The PEOPLE of the State of New York, Respondent, v. Ralph H. DRAKE, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 509

461 N.Y.S.2d 509

92 A.D.2d 1011

The PEOPLE of the State of New York, Respondent, v.Ralph H. DRAKE, Jr., Appellant.

Supreme Court, Appellate Division Third Department.

March 10, 1983.

Robert A. Becher, Troy, for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany(F. Patrick Jeffers, Albany, of counsel), for respondent.

Before KANE, J.P., and MIKOLL, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered March 19, 1982, upon a verdict convicting defendant of the crime of grand larceny in the third degree.

Defendant, employed in a supervisory capacity with the New York State Department of Taxation and Finance, was called for jury duty in Albany County during the May, 1976 term of the County Court.Under the procedures then prevailing for State employees serving as jurors, he was entitled to fully compensable leave time for the days during the term that he actually was required to serve, but was expected to return to his normal duties whenever excused from jury duty.His indictment and conviction for grand larceny in the third degree arose out of the result of an investigation allegedly revealing that whereas he only actually served as a juror for a total of four days during the term, he marked and submitted a State employee time card so as to indicate that he was absent by reason of jury duty several additional days.It was thus the theory of the prosecution that as to those additional days, he was paid full salary for what was in effect noncompensable unauthorized leave time.Contrary to defendant's contention, there was sufficient evidence to establish the commission of a larceny by false pretenses.Court records introduced in evidence constituted proof that defendant was not actually serving as a juror on the days in question.The jury could also have inferred that defendant did not report for work at any time during those same days, since defendant himself had reported his being absent on those days.Defendant does not seriously dispute that the manner in which he filled out and submitted the time card constituted a representation concerning the time he was required to be absent by reason of jury service.He does, however, attack the sufficiency of the proof that the State paid him additional monies in reliance on the representations contained on the time card, since the proof showed that, under the State's payroll System, his salary checks for the pay periods covering the days under consideration were issued before he turned in the time card.However, this argument is unavailing.There was also evidence that had he accurately reported his absences from work, an appropriate deduction from his salary would have been made in his succeeding paycheck.Thus, the only fact which is debatable is whether the larceny occurred during the pay period covering his unauthorized absences, as alleged in the indictment, or in the next pay period, when the appropriate deduction from his salary would have been entered.Therefore, since the date of the misappropriation of State funds is not a material element in the crime of larceny, such a discrepancy (here not otherwise prejudicial) is not a fatal variance (People v. LaMarca, 3 N.Y.2d 452, 458-459, 165 N.Y.S.2d 753, 144 N.E.2d 420).Next to be considered is defendant's contention that County Court erred in denying, without a hearing, his motion to dismiss the indictment on the basis of selective prosecution.We find no such error.Defendant's moving papers were insufficient to make out a prima facie case that he was invidiously discriminated against in being selected for criminal prosecution rather than internal disciplinary action.At most, his papers demonstrate that a previous policy may have existed in similar cases to handle them on a noncriminal basis.However, defendant was not the only person prosecuted for submitting falsified time cards, and he has made no evidentiary showing whatsoever that he was singled out for prosecution without any intention to follow it up by general enforcement against others.Hence,...