People v. Rosich
| Decision Date | 25 February 1991 |
| Citation | 170 A.D.2d 703,567 N.Y.S.2d 749 |
| Parties | The PEOPLE, etc., Respondent, v. Joseph Michael ROSICH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Aronwald & Pykett, White Plains (William I. Aronwald and Richard B. Sacks, on the brief), for appellant.
Edward J. Kuriansky, Deputy Atty. Gen., New York City (Arthur G. Weinstein and Donald H. Zuckerman, of counsel), for respondent.
Before BRACKEN, J.P., and LAWRENCE, ROSENBLATT and RITTER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered October 24, 1989, convicting him of grand larceny in the second degree (three counts), offering a false instrument for filing in the first degree (10 counts), and aiding and abetting the unlawful practice of a profession (five counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for further proceedings pursuant to CPL 460.50(5).
The instant indictment charged the defendant, a podiatrist, with, inter alia, three counts of grand larceny in the second degree (see, Penal Law § 155.40), alleging that he misappropriated in excess of $600,000 from the New York State Medicaid program, and five counts of aiding and abetting the unlawful practice of a profession (see, Education Law § 6512), alleging that he employed or held out as podiatrists four individuals who were not so licensed. On appeal, the defendant contends that the counts charging him with grand larceny in the second degree and the counts charging him with aiding and abetting the unlawful practice of a profession should have been dismissed as duplicitous in that each of those counts alleged a series of offenses over a period of time (see, People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577). We disagree.
The defendant was properly charged with these offenses under a continuing crime theory. It is well established that grand larceny may be charged as a series of single larcenies governed by a common fraudulent scheme or plan even though the successive takings extended over a long period of time (see, People v. Rossi, 5 N.Y.2d 396, 401, 185 N.Y.S.2d 5, 157 N.E.2d 859; People v. Cox, 286 N.Y. 137, 36 N.E.2d 84). Furthermore, we find that the plain language of Education Law § 6512 contemplates a continuing crime as well as a single act (see, People v. Keindl, supra ). Nor can it be said that the counts as charged impaired the defendant's ability to prepare a defense or impaired his ability to...
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