People v. Johnson

• Decision Date: 09 March 1995
• Citation: 623 N.Y.S.2d 418,213 A.D.2d 791
• Parties: The PEOPLE of the State of New York, Respondent, v. Kerry JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 418

623 N.Y.S.2d 418

213 A.D.2d 791

The PEOPLE of the State of New York, Respondent, v. Kerry JOHNSON, Appellant.

Supreme Court, Appellate Division Third Department.

March 9, 1995.

Jeffrey S. Berkun, Albany, for appellant.

Sol Greenberg, Dist. Atty. (Kathryn M. Barber, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and SPAIN, JJ.

SPAIN, Justice.

Appeal from a judgment of the County Court of Albany County (Keegan, J.), rendered February 20, 1992, upon a verdict convicting defendant of two counts of the crime of grand larceny in the third degree.

On August 31, 1989, defendant, as president of 342 Management Corporation (hereinafter 342MC), entered into a lease with P & JG Enterprises (hereinafter P & JG), a corporation which, inter alia, managed the financial affairs of the Thruway House, a hotel located in the City of Albany (hereinafter the hotel). The lease provided that 342MC would assume management of the hotel on September 1, 1989, in exchange for P & JG receiving a lump-sum payment as well as 20% of the gross revenue from the operation of the hotel. Although the lease specifically provided that P & JG was entitled to payments for services rendered at the hotel prior to September 1, 1989 and that 342MC was entitled only to payments for services provided at the hotel after that date, defendant informed the hotel staff that all payments received by the hotel were to be deposited in 342MC's account; he also fired the hotel bookkeeper who had been authorized to, inter alia, allocate payments between P & JG and 342MC.

On or about October 26, 1989, two checks were sent to the hotel as payment for services rendered by the hotel prior to September 1, 1989. Specifically, a check drawn in the amount of $29,843.50 and a check in the amount of $5,494, both issued by the State and made payable to the hotel, were sent as payment for separate conferences held at the hotel in August 1989. These checks were received by the hotel on October 28, 1989 and, pursuant to defendant's instructions, were transported to Jefferson County. Defendant received the checks in Jefferson County on October 30, 1989 and deposited the funds in a bank account held by Structural Development Associates Inc. (hereinafter SDAI), the parent corporation of 342MC.

When questioned on October 30, 1989 by Jagadish Garg, vice-president of P & JG, defendant denied receipt of the checks. However, upon examining the hotel's ledger in November 1989, Garg discovered that these checks had in fact been received on October 28, 1989. Defendant was subsequently indicted in Albany County on two counts of grand larceny in the third degree. Defendant thereafter moved to dismiss the indictment on the ground that venue was not proper in Albany County. Defendant's motion was denied. Following a jury trial, defendant was convicted on both counts of grand larceny in the third degree and sentenced to two concurrent terms of imprisonment of 2 1/3 to 7 years. Defendant appeals.

Defendant contends that the evidence presented at the trial was insufficient to demonstrate that he had the requisite intent to be found guilty of grand larceny in the third degree. He claims that he did not know that the checks in question were payments for business conducted at the hotel prior to September 1, 1989, and therefore that he did not know that they belonged to P & JG.

In order to convict defendant of grand larceny in the third degree, the People must present sufficient evidence to establish that defendant wrongfully deprived an owner of property valued at more than $3,000 with the specific intent to permanently withhold such property (see, Penal Law § 155.05[1]; § 155.35; People v. Hoyt, 92 A.D.2d 1079, 461 N.Y.S.2d 569). Evidence presented at the trial demonstrated that defendant (1) was aware of the provisions of the August 31, 1989 lease which limited 342MC to payments for services rendered after September 1, 1989, (2) had, on previous occasions, erroneously deposited funds on behalf of 342MC that were the property of P & JG according to the terms of the lease, (3) fired the bookkeeper who was responsible for allocating, pursuant to the lease, funds received between 342MC and P & JG, (4) informed hotel employees that all payments to the hotel were the property of 342MC, (5) denied receiving the $29,000 check when questioned as to its whereabouts on the same date he deposited both checks in issue in SDAI's bank account, and (6) instructed a hotel employee to transport the checks in question to Jefferson County where he deposited them. Viewed in the light most favorable to the People, this evidence was sufficient to allow a rational trier of fact (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932) to find defendant guilty of both counts of grand larceny in the third degree beyond a reasonable doubt (see, People v. Stumbrice, 194 A.D.2d 931, 933-934, 599 N.Y.S.2d 325, lv denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325; People v. Murray, 158 A.D.2d 400, 551 N.Y.S.2d 234).

Defendant's next contention is that County Court committed reversible error by allowing the People to inquire, on cross-examination, as to defendant's prior conviction of falsifying business records. As this prior conviction occurred just three months prior to the trial, it clearly had bearing upon defendant's credibility and his willingness to place his own interests above those of society (see, People v. Arroyo, 194 A.D.2d 406, 407, 598 N.Y.S.2d 786, lv denied 82 N.Y.2d 751, 603 N.Y.S.2d 992, 624 N.E.2d 178). The fact that defendant's prior conviction may have involved conduct similar to the conduct alleged in the instant action does not automatically bar its use for impeachment purposes (see, People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216; People v. Arroyo, supra ). Additionally, by limiting questioning as to "the fact of the prior conviction without inquiry concerning the underlying occurrence" (People v. Baird, 167 A.D.2d 693, 694, 563 N.Y.S.2d 274, lv denied 77 N.Y.2d 903, 569 N.Y.S.2d 935, 572 N.E.2d 618), County Court properly allowed the People to cross-examine defendant regarding his prior conviction (see, People v. Ashley, 145 A.D.2d 782, 782-783, 535 N.Y.S.2d 763). Moreover, defendant, in failing to object to County Court's ruling at the close of the Sandoval hearing and by his failure to object to the People's Sandoval inquiry during cross-examination, has failed to properly preserve this issue for appellate review (see, People v. Valenti, 199 A.D.2d 617, 618, 604 N.Y.S.2d 652, lv denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502; see also, CPL 470.05[2].

Defendant further contends that County Court committed error by denying his request to consolidate the two counts of grand larceny in the third degree and that the People's prosecution of defendant on both of these counts placed him in double jeopardy. A search of relevant case law demonstrates a complete lack of authority to support the proposition that the failure to consolidate two counts of an indictment results in double jeopardy. Moreover, defendant was only prosecuted once. As to the appropriateness of County Court's refusal to consolidate the two counts of grand larceny in the third degree, there is no statutory provision which addresses the consolidation of counts contained in the same indictment (see, CPL 40.40[1]; 200.20[1], [2][a]. In People v. Reingold (44 A.D.2d 191, 353 N.Y.S.2d 978), where the trial court denied the defendant's motion to consolidate numerous counts contained in the same indictment, the court held that in the absence of statutory guidance "it would appear that such a consolidation must be in the interest of justice and must rest in the discretion of the court" (id., at...