People v. Emerson
| Decision Date | 27 February 1986 |
| Citation | 117 A.D.2d 935,499 N.Y.S.2d 242 |
| Parties | The PEOPLE of the State of New York, Respondent, v. John W. EMERSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Allen E. McAllester, Canton, for appellant.
Charles A. Gardner, Dist. Atty., Canton, for respondent.
Before MAIN, J.P., and WEISS, MIKOLL and HARVEY, JJ.
Appeal from a judgment of the County Court of St. Lawrence County (Intemann, Jr., J.), rendered May 22, 1985, upon a verdict convicting defendant of the crime of grand larceny in the third degree.
On September 11, 1984, defendant and Geoffrey Cary accompanied Thomas Williams, admitted to be an intellectually slow person whom they had known for four or five years, to the St. Lawrence National Bank in the Town of Potsdam, St. Lawrence County. There Williams withdrew $200 from his account and gave it to Cary and defendant on Cary's promise that he needed it and would use it to visit his sick son in Syracuse. In the afternoon of the same day, the trio again returned to the bank and Williams withdrew $300 and gave it to Cary and defendant. A factual dispute arose from the trial evidence as to the reason for this withdrawal. Williams claimed that defendant told him that Williams owed a fine to the Potsdam Police Department arising out of a dispute Williams had had with his landlord, and that defendant would pay the fine on Williams' behalf. Although, there was such a dispute, it is uncontroverted that no fine against Williams was ever imposed and that none was due and owing. In any event, Williams testified that although he remembered no fine being due, he called the Potsdam Police Department on the following day to be certain. Williams further testified that he parted with the money out of fear of defendant and Cary. Defendant testified in his own behalf that he asked Williams for $300 to pay a fine that defendant owed to the Police Court of the Town of Gouverneur for a motor vehicle violation. Defendant did in fact owe such a fine. This fine was never paid, however, and the money was split between defendant and Cary. Some of it was spent by the two drinking with Williams.
On these facts and circumstances, defendant and Cary were charged by indictment with a single count of grand larceny in the third degree in that they stole property from Williams in excess of $250. Cary was permitted, pretrial, to enter a plea of guilty to the crime of petit larceny. Defendant was tried and convicted as charged by a jury and was sentenced as a second felony offender to an indeterminate prison term of 2 to 4 years.
On this appeal, defendant mainly contends that County Court's charge, confined as it was to the crime of larceny by false promise (see, Penal Law § 155.05[2][d] ), was legally insufficient due to the court's refusal to charge the necessity of Williams' reliance on the promises made as an element of that crime. We disagree. A person commits larceny by false promise under Penal Law § 155.05(2)(d):
* * * when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or, as the case may be, does not believe that the third person intends to engage in such conduct.
(See, People v. Ryan, 41 N.Y.2d 634, 638-639, 394 N.Y.S.2d 609, 363 N.E.2d 334.) The trial evidence as outlined above provided ample basis for the jury to have concluded that the quoted portion of Penal Law § 155.05(2)(d) was violated. Contrary to defendant's argument, the statute does not require reliance on the promises made, and we do not consider the lack of such a requirement to be a legislative oversight.
More critical to this appeal is the next part of the statute which provides that:
* * * defendant's intention or belief that the promise would not be performed may not be established by or inferred from the fact...
To continue reading
Request your trial