People v. Mayo

• Decision Date: 19 June 1975
• Parties: , 337 N.E.2d 124 The PEOPLE of the State of New York, Respondent, v. Ann MAYO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 609

374 N.Y.S.2d 609

36 N.Y.2d 1002, 337 N.E.2d 124

The PEOPLE of the State of New York, Respondent, v. Ann MAYO, Appellant.

Court of Appeals of New York.

June 19, 1975.

Bernard R. Bacharach, White Plains, for appellant.

Carl A. Vergari, Dist. Atty. (James M. Rose and John R. LaCava, White Plains, of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed. The evidence presented to the Grand Jury, particularly as to the gross discrepancy in the number of toll tickets and the defendant's behavior when confronted by the police, was legally sufficient to support the indictment. (CPL 210.20; People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, affd. 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432; People v. Ward, 37 A.D.2d 174, 323 N.Y.S.2d 316.) Nor is there any merit to the contention that the mere shortage of tickets does not support an inference that the defendant stole funds equal to the dollar value of the tickets (Penal Law, § 155.20, subd. 2, par. (b)). In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt (cf. People v. Fellman, 35 N.Y.2d 158, 359 N.Y.S.2d 100, 316 N.E.2d 569).

FUCHSBERG, Judge (dissenting).

The issue is whether the evidence adduced before the Grand Jury was sufficient to sustain an indictment for grand larceny second degree of defendant Ann Mayo who for eight years had been employed by the New York State Thruway Authority as a toll collector at the Tappan Zee Bridge. The County Court dismissed the indictment; the Appellate Division reinstated it by a divided court.

Cars approaching toll booths obtained passage in any of three way: by cash, credit or commutation tickets, the last involving stubs detached from booklets when presented by motorists. For each car, the toll collector pushed a button, activating a computer which recorded the type of transaction. In addition, a pressure-sensitive treadle in the pavement noted the number of vehicles passing through each booth. Thus, the total number of vehicles must coincide with the number of times the buttons were pressed, regardless of how passage was obtained.

Cash and credit transactions were audited daily. In Ms. Mayo's case, so far as appears, they were always in order. Commutation tickets, though required to be turned in, were checked only on a random basis. However, an audit conducted during the four-week period preceding March 9, 1973 showed her to be 2,153 commutation tickets short. On that day, when a State Trooper, who had been called to arrest her, approached her in the locker room, she fled into the ladies room, where he took from her 122 commutation tickets before she could flush them down the drain. A 10 and 4 single dollar bills were with her purse.

This was the only testimony the People presented to the Grand Jury. No witness was produced who made any observati of her pocketing even a single cash toll. There was no attempt to identify the small sum of money she had on her, whether by markings or otherwise. There was not even any evidence presented to show that any recent test had been made to establish the computer's accuracy. During a voluntary appearance before the Grand Jury, she testified her prior record was blameless, that she had been assigned to work as a relief collector moving from booth to booth, that the rule about turning in and counting commuter stubs was not adhered to and that she had been frightened when the trooper had approached her.

A Grand Jury may indict a person for a crime only where '(a) the evidence before it is legally sufficient to establish that such person committed such offense and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.' (CPL 190.65). Legally sufficient evidence is not present unless the evidence establishes 'every element of the offense charged and the defendant's commission thereof' (CPL 70.10, subd. 1) and 'The test to be applied on a motion to dismiss the indictment for insufficiency of evidence is whether there has been a 'clear showing' that the evidence before the Grand Jury if unexplained and uncontradicted would not warrant conviction by a trial jury.' (People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, affd. 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432; see, also, People v. Potwora, 44 A.D.2d 207, 210, 354 N.Y.S.2d 492; People v. Peetz, 7 N.Y.2d 147, 149, 196 N.Y.S.2d...