People v. Litman

• Decision Date: 12 January 1984
• Citation: 470 N.Y.S.2d 940,99 A.D.2d 573
• Parties: The PEOPLE of the State of New York, Appellant, v. Patricia LITMAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 940

470 N.Y.S.2d 940

99 A.D.2d 573

The PEOPLE of the State of New York, Appellant, v.Patricia LITMAN, Respondent.

Supreme Court, Appellate Division Third Department.

Jan. 12, 1984.

William H. Power, Jr., Dist. Atty., Canton, for appellant.

David Demarest, Ogdensburg, for respondent.

Before MAHONEY, P.J., and CASEY, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the County Court of St. Lawrence County, entered April 4, 1983, which granted defendant's motion to dismiss the indictment.

Defendant allegedly stole money from her husband.An indictment charging her with grand larceny in the second degree was dismissed in the interest of justice and the People appeal.

Evidence put before the Grand Jury disclosed the following.Defendant worked for complainant, a physician, from about October, 1977 until their marriage in 1979.In June, 1981, she resumed managerial duties in his office at her own initiative and without compensation.Between October 1, 1981 and February 15, 1982, she allegedly appropriated over $1,500 by withdrawing checks from her husband's business mail, depositing them in a dormant checking account in his name only, and then drawing upon that account for her own purposes and benefit by signing his name.Complainant discovered this conduct, confronted defendant with it, instituted a still pending divorce proceeding and filed the criminal complaint providing the basis for this proceeding.

In dismissing the indictment, the trial court, as required, reviewed the factors set forth in CPL 210.40.Although recognizing the seriousness of the offense, the court emphasized that only complainant was harmed, that the evidence of guilt was circumstantial, and that a question existed as to whether complainant impliedly ratified the wife's acts.The court further noted that she had an unblemished criminal record, was an upstanding member of the community, and that her actions may have been justified by the failure of the husband to provide sufficient funds for her personal needs.It was also observed that imposition of a prison sentence was unlikely and that dismissal of the indictment would have little impact on the confidence of the public in the criminal justice system or on the safety or welfare of the community.

We have independently reviewed the factors set forth in CPL 210.40 and cannot agree that this case presents that rare or unusual circumstance which cries out for fundamental justice (seePeople v. Belge, 41 N.Y.2d 60, 62-63, 390 N.Y.S.2d 867, 359 N.E.2d 377).The...