People v. Kirk

• Citation: 62 Misc.2d 1078,310 N.Y.S.2d 155
• Parties: The PEOPLE of the State of New York v. Edwin W. KIRK, Defendant.
• Decision Date: 12 June 1969
• Court: New York County Court

Page 155

310 N.Y.S.2d 155

62 Misc.2d 1078

The PEOPLE of the State of New York v. Edwin W. KIRK, Defendant.

Rockland County Court.

June 12, 1969.

Robert R. Meehan, Dist. Atty., Rockland County (Herman J. Van der Linde, Asst. Dist. Atty., of counsel), for the People.

Sichol & Hicks, Suffern (William R. Sichol, Jr., Suffern, of counsel), for defendant.

JOHN A. GALLUCCI, Judge.

The defendant was indicted by indictment no. 69--28, and upon arraignment entered a plea of not guilty. Thereafter, he was permitted to withdraw his plea of not guilty and was granted leave to interpose a demurrer to said indictment.

The indictment charges the defendant, under four counts, with:

1. Grand Larceny in the First Degree, a felony, by false pretenses under the first two counts of the indictment;

2. Offering to be filed in a public office a false instrument in writing, a felony, in violation of Section 2051 of the Old Penal Law, under the third count of the indictment; and

3. Falsely representing that he had a degree, a misdemeanor, in violation of Section 224, Paragraph 3, of the Education Law, under the fourth count of the indictment.

Defendant's demurrer is based on the following grounds:

1. That the indictment does not conform substantially to the requirements of Sections 275 and 276 of the Code of Criminal Procedure;

2. That more than one crime is charged in the Fourth Count of the indictment within the meaning of Sections 278 and 279 of the Code of Criminal Procedure;

3. That the facts stated, as to each count, do not constitute a crime;

4. That the Fourth Count of the indictment, on its face, is barred by the Statute of Limitations since the acts complained of occurred more than two years prior to the finding of the indictment;

5. That Section 224, Paragraph 3, of the Education Law is unconstitutional; and

6. That each count, as alleged, is so uncertain and indefinite as to be violative of the Constitutions of the United States and of the State of New York.

The first four grounds of demurrer set forth by the defendant are provided for in subdivisions 2, 3, 4 and 5 of Section 323 respectively of the Code of Criminal Procedure. The sixth is in effect a repetition of the first and will be so treated by the Court.

Defendant's contention that Section 224, Paragraph 3, of the Education Law is unconstitutional, while it is not set forth in Section 323 of the Code of Criminal Procedure as a ground for demurrer, the Court will, nevertheless, consider it as a proper ground for demurrer.

On a demurrer, the factual allegations of the indictment must be accepted as true and be deemed to have been admitted. (People v. Wright, 12 Misc.2d 961, 173 N.Y.S.2d 160; People v. Squillante, 12 Misc.2d 514, 173 N.Y.S.2d 749; People v. Chester, 4 Misc.2d 949, 158 N.Y.S.2d 829; People v. Kalbfeld, 124 Misc. 200, 207 N.Y.S. 744).

As to the first and sixth grounds of the demurrer, the Court is of the opinion that the indictment conforms and complies substantially with the requirements of Sections 275 and 276 as to its contents and form, respectively. Defendant's claims are without merit.

As to the second ground of the demurrer that more than one crime is charged in the Fourth Count of the indictment within the meaning of Sections 278 and 279 of the Code of Criminal Procedure, the Court concludes that said claim is also without merit.

The defendant contends under the second ground of the demurrer that the Fourth Count alleges, 'on the 29th day of December, 1966, and continuing from thence up to and including the 13th day of February, 1969', the defendant falsely represented he had received a Bachelor of Science Degree and, therefore, each specific representation should be set forth in the indictment as a separate count since each would constitute a separate crime.

Section 278 provides that an indictment 'must charge but one crime and in one form except as in the next section provided'. Section 279 provides in material part, that: 'When there are several charges * * * for two or more acts or transactions connected together * * * instead of having several indictments * * * the whole may be joined in one indictment * * * in separate counts * * *.'

In other words, the defendant's basic argument under the second ground of the demurrer is that the Fourth Count of the indictment is void because it fails to allege the dates on which the specific crimes were committed and that alleging the continuous commission of the crime over a period of more than two years is insufficient. The defendant argues that each separate false representation by the defendant that he had a degree is a separate crime and, therefore, the prosecution must charge the defendant separately as to each such false representation. The Court does not agree.

A similar claim was made by the defendants in People v. Gold Key Club, 2 Misc.2d 380, 152 N.Y.S.2d 669. The defendants there were charged on March 13, 1956, with the misdemeanors of (1) selling alcoholic beverages without a license from about September 1, 1951, to February 10, 1956, and (2) storing alcoholic beverages without a license from about September 1, 1951, to February 10, 1956, and two other counts. The Court in refusing to uphold the defendants' contention, at page 382, 152 N.Y.S.2d at p. 672, said 'No doubt the Grand Jury and the District Attorney could have charged the defendants with a separate crime for each and every illicit sale of which there was sufficient proof for the period covered by the information. While the defendants have been benefited rather than prejudiced by being charged with a single continuous commission of the crimes involved rather than a multiplicity of separate acts, the validity of the first two counts of the information depends upon the determination whether the crimes charged can, by their nature, be continuing crimes.

'There is ample authority for charging a defendant with a single continuous crime for a course of conduct over a period of time which comprises the commission of any criminal acts of the same nature motivated by a single common illegal intent or forming part of a general plan or scheme. People v. Farson, 244 N.Y. 413, 155 N.E. 724; People v. Cox, 286 N.Y. 137, 36 N.E.2d 84; Sturgis v. Spofford, 45 N.Y. 446; People v. Parkinson, Gen.Sess., 43 N.Y.S.2d 690; People v. Fay, 184 Misc. 684, 54 N.Y.S.2d 541.'

The Court in People v. Gold Key Club, Supra, held that the crimes of selling and storing alcoholic beverages without a license 'are such crimes as by their very nature can be committed as continuing crimes,' and at page 383, 152 N.Y.S.2d at p. 673, stated, '* * * The People have elected to charge these defendants with these crimes as continuing crimes over a period of a period of a number of years. * * * It is this charge which will have to be proved in order to sustain the first and second counts of the indictment.'

In the instant case, the Court holds that the crime charged in the Fourth Count of the indictment, to wit, the misdemeanor of falsely representing that the defendant had a degree, with intent to deceive, is such a crime that by its very nature can be committed as a continuing crime. This is the charge which will have to be proved in order to sustain that count of the indictment.

The defendant alleges as the third ground of demurrer that the facts stated do not constitute a crime, referring to each of the four counts of the indictment.

The Court will consider first the two larceny counts since the allegations thereof are similar. The first count states that the defendant, on and between January 1, 1967, and the 31st day of August, 1967, wrongfully obtained from the County of Rockland $12,666.67 by falsely and fraudulently representing that he had the requisite qualifications for appointment to the position of Commissioner of Social Welfare, including a Bachelor of Science Degree; that the representations were made by the defendant to induce the Board of Supervisors of the County of Rockland to employ him as Commissioner of Social Welfare and that the Board in reliance on such representations did so and continued to employ him at a salary of $19,000.00 per annum; that the representations were false at the time they were made and the defendant knew they were false in that he never had a Bachelor of Science Degree, it being the intent of the defendant to steal $12,666.67 from the County of Rockland and to appropriate the same to his own use. The second count is exactly the same as the first except that it covers the period September 1, 1967, to December 31, 1968, and the amount involved was $30,333.33. Obviously, two separate counts of grand larceny were set forth in the indictment because of the change in the Penal Law. The first count charges grand larceny under the Old Penal Law, which was in effect until August 31, 1967, and the second count charges grand larceny under the new Penal Law which became effective on September 1, 1967.

An indictment or a count of an indictment charging the commission of a particular crime must set forth all of the elements of that crime. (People v. Dabek, 18 A.D.2d 773, 235 N.Y.S.2d 86; People v. Riforgiato, 19 A.D.2d 132, 241 N.Y.S.2d 239; People v. LoPinto, 49 Misc.2d 997, 269 N.Y.S.2d 1, Aff'd 27 A.D.2d 63, 275 N.Y.S.2d 969).

To charge grand larceny by false pretenses, it must be established that (1) there was a criminal intent to deprive and defraud the owner of property, (2) the defendant made a false representation of a past or existing fact, (3) the defendant knew the representation was false at the time he made it, (4) the defendant obtained property of another, and (5) the representation was believed and relied on by the person to whom made and that person was in whole or in part induced thereby to give his property to the defendant. (People v. Lehrer, 182 Misc. 645, 45 N.Y.S.2d 170; People v. Levitas, 40 Misc.2d 331, 243 N.Y.S.2d 234; People v. Lobell, 298 N.Y. 243, 82 N.E.2d 145; People v. Hubbard, 10...