People v. Johnson
| Decision Date | 19 June 1980 |
| Citation | 429 N.Y.S.2d 281,76 A.D.2d 983 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Dixie Lee JOHNSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Raymond M. Schlather, Ithaca, for appellant.
Joseph Joch, Jr., Tompkins Cty. Dist. Atty., Ithaca (Michael R. Berg, Ithaca, of counsel), for respondent.
Before SWEENEY, J. P., and STALEY, MAIN, MIKOLL and HERLIHY, JJ.
MEMORANDUM DECISION.Appeal from a judgment of the County Court of Tompkins County, rendered February 2, 1979, upon a verdict convicting defendant of the crime of petit larceny.
Defendant was indicted for the crimes of falsely obtaining public assistance in violation of section 145 of the Social Services Law and grand larceny in the second degree. Following a jury trial, she was found guilty of petit larceny and falsely obtaining public assistance. Pursuant to section 145 of the Social Services Law, the court struck the verdict with respect to the charge of falsely obtaining public assistance because of the fact that defendant was found guilty of petit larceny and sentenced her to a conditional discharge for a period of one year. This appeal ensued.
The record reveals that defendant was receiving public assistance under the program of Aid to Families with Dependent Children (AFDC). Defendant and her four children resided in an apartment, and in April, 1975 her landlord began residing with her and the children in the apartment. Recertification applications were submitted four times by defendant after April, 1975 and these applications requested additional information if the recipient shared a housing arrangement. No additional information was stated by defendant on these applications concerning her sharing of a housing arrangement. During the period in question, from October, 1975 to March, 1977, defendant certified rental expenses of $150 per month. Her landlord testified that from October, 1975 through March, 1976 he charged defendant $140 per month for rent and in April, 1976 he raised the rent to $150 per month. He also testified that while residing with defendant he continued to receive rent payments from her and that he reported these payments as rental income on his tax returns. Defendant testified that she paid all the bills herself, including payments for rent, electricity and groceries; that her landlord never gave her a reduction in rent; and that he never returned to her any of the money which she paid him for rent.
At the close of the People's case, defendant moved for a trial order of dismissal, decision was reserved, and the motion was renewed after the defense rested. The motion was denied and on this appeal defendant argues that the denial was improper as the prosecution failed to prove by legally sufficient evidence that defendant wrongfully obtained public assistance benefits to which she was not entitled. Whether the charge is larceny under the Penal Law or a violation of section 145 of the Social Services Law, the prosecution must prove that the defendant was not entitled to the benefits received (People v. Hunter, 34 N.Y.2d 432, 438, 358 N.Y.S.2d 360, 315 N.E.2d 436). A senior welfare examiner testified that for rental assistance defendant was entitled to the amount actually paid up to a maximum of $146 per month. Since the landlord testified that defendant's rent for the months of October, 1975 through March, 1976 was $140 per month, and since defendant certified that she was paying $150 per month during that time, the jury could conclude that during those months defendan...
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