People v. Rosenbaum

• Decision Date: 09 January 1981
• Citation: 435 N.Y.S.2d 502,107 Misc.2d 501
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Jacob ROSENBAUM, Defendant.
• Court: New York Supreme Court

Page 502

435 N.Y.S.2d 502

107 Misc.2d 501

The PEOPLE of the State of New York, Plaintiff, v. Jacob ROSENBAUM, Defendant.

Supreme Court, Rockland County.

Jan. 9, 1981.

Deputy Asst. Atty. Gen., Thomas Zugibe, Sp. Prosecutor for Medicaid Fraud Control, for People.

Jay L. T. Breakstone, Barry Ivan Slotnick, New York City, for defendant.

DECISION AND ORDER ON OMNIBUS MOTION

DUNCAN S. McNAB, Judge.

Defendant Jacob Rosenbaum has been charged under Rockland County indictment No. AG-80-171 with one count of grand larceny second degree, seventeen counts of grand larceny third degree, six counts of petit larceny and one count of commingling personal allowance funds, the latter in violation of Sec. 131-o(9) (b) of the Social Services Law. The top count of grand larceny second degree and sixteen of the grand larceny third degree counts contained in counts 3-18 involve the alleged theft of certain Supplemental Security Income checks from former residents of the Mountainview Home for Adults in 1978, then operated by defendant. The seventeenth count of grand larceny third degree (Count Two of the indictment) and the six petit larceny counts charge defendant with thefts of specified Social Security checks similarly issued to former residents.

The defendant, by way of motion papers filed on 11/19/80, has moved for inspection of the Grand Jury minutes and dismissal of the instant indictment, or alternatively, for enumerated items of discovery and a bill of particulars. The dismissal portion of defendant's motion rests on essentially two arguments, the first being the defense of claim of right contained in P.L. Sec. 155.15(1). ^* Defendant contends that the Department of Social Services owed him various sums of money well in excess of the amounts the present indictment charges him with stealing which, defendant contends, entitled him to the checks in question here. Secondly, defendant contends that pursuant to certain Department of Social Services guidelines, which defendant failed to specify in his motion papers, there is a "30-day rule" by which an owner of an adult home may keep open a bed upon discharge of a resident for 30 days beyond the actual discharge date. As a corollary thereto, defendant alleges this purported 30-day rule afforded defendant a lawful claim to take those Supplemental Security Income and Social Security checks which were issued for the month covered by this alleged 30-day "grace period" subsequent to a resident's actual discharge. Accordingly, defendant urges 1) that the evidence at the grand jury was insufficient for an absence of any larcenous intent, and 2) the grand jury proceedings were fatally tainted because the Special Prosecutor allegedly withheld favorable testimony as to claim of right and failed to instruct the grand jury as to this issue.

Additionally, defendant contends that the instant indictment, and especially Count 25, is defective as being vague and lacking in sufficient specificity so as to identify the charges brought against the defendant and to protect him from future double jeopardy.

Treating the latter claim first, each of the counts of the instant indictment is sufficiently particularized and is supported by adequate facts to satisfy the requirements of CPL Sec. 200.50(7). Defendant's main contention here focuses on Count 25, which charges defendant with commingling of personal allowance funds in violation of Social Services Law Sec. 131-o(9)(b) during the period 7/1/78 to 9/1/79. This section provides that "any person who commingles, borrows from or pledges any personal allowance funds required to be held in a separate account shall be guilty of a Class A Misdemeanor". In P. v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656 (1978), the Court of Appeals held that "when indicting for statutory crimes, it is usually sufficient to charge the language of the statute unless that language is too broad ... especially ... when the crime is one such as this, in which the acts that constitute the crime are many and are spread over a considerable period of time and space." (emphasis added.) Such is also the case here. Taken in conjunction with the Special Prosecutor's consent to provide defendant with a full bill of particulars as to this count, a practice also approved in Iannone, this Court would find Count 25 to be just as valid as each of the first 24. So, as to each and every count, defendant's motion to dismiss for vagueness and lack of specificity must be denied.

Moving on to defendant's contentions with respect to the so-called 30-day bed hold rule, the Special Prosecutor denies in his answering papers that any such 30-day rule exists. The Court also not being aware of any regulation or guideline establishing such a 30-day rule, asked both sides to submit whatever law they had on this question. Pursuant to the Court's request, defendant submitted, in piecemeal fashion, limited portions of the Social Services regulations contained in 18 NYCRR. The Court has carefully reviewed these regulations and finds nothing therein to support defendant's argument. In fact, it appears that the particular sections submitted by defendant, concerning inter alia, the discharge and transfer of residents and the temporary absence of a resident, have been taken out of all proper context and are completely irrelevant to the present case. As defendant himself concedes at page 35 of his moving papers, dated 11/17/80, the Social Security Administration expressly forbids any such 30-day bed hold. Moreover, while referring the Court to 18 N.Y.C.R.R. Sec. 352.8 and Sec. 370.9, defendant failed to provide the Court with the accompanying subsections relating to this State's public assistance program which expressly state that those receiving Supplemental Security Income (SSI) shall not be eligible for home relief or other forms of State public assistance. See 18 N.Y.C.R.R. 370.4 and 370.4(e); 370.9(j), and 370.11; and see Sec. 352.29(g) and Sec. 352.30(e). In effect, the receipt of Supplemental Security Income prevents one from also receiving public assistance from the State. Thus, since each of the alleged larceny counts in the present case charges a stealing of either a social security check or an SSI check, the New York State regulations describing what effect the temporary absence of residents from adult homes would have on his or her eligibility for public assistance are irrelevant.

Similarly misplaced, too then, for the same reason, is defendant's additional argument that the so-called 30-day bed hold, if not expressly written in black and white, is at least a rule of "practice", relying on a letter written by a staff member of the Rockland County Department of Social Services, submitted as an exhibit attached to his reply papers dated 1...