Opinion
May 28, 1976
Appeal from the Onondaga County Court.
Present — Marsh, P.J., Moule, Simons, Dillon and Goldman, JJ.
Judgment insofar as it convicts defendant of violation of section 145 Soc. Serv. of the Social Services Law unanimously reversed and charge dismissed and otherwise judgment affirmed. Memorandum: Defendant was convicted following a jury trial for violation of section 145 Soc. Serv. of the Social Services Law, grand larceny, second degree and conspiracy in the third degree. The language of subdivision 1 of section 145 Soc. Serv. of the Social Services Law clearly states that the conduct proscribed therein is a misdemeanor "unless such act constitutes a violation of a provision of the penal law of the state of New York, in which case he shall be punished in accordance with the penalties fixed by such law." Accordingly, there is no misdemeanor offense under section 145, if the defendant has been convicted for the same conduct under a provision of the Penal Law (People v Hunter, 34 N.Y.2d 432; see, also, People v Prim, 47 A.D.2d 409). The evidence amply supports the conviction of grand larceny in the second degree and conspiracy in the third degree.