Opinion
KA 01-01765.
December 31, 2003.
Appeal from a judgment of Yates County Court (Falvey, J.), entered June 19, 2001, convicting defendant after a jury trial of grand larceny in the third degree and peddling and soliciting (two counts).
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
SUSAN H. LINDENMUTH, DISTRICT ATTORNEY, PENN YAN, FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, grand larceny in the third degree (Penal Law § 155.35) on theories of false pretenses and false promise ( see § 155.05 [2] [a], [d]). The judgment is not subject to summary reversal as a consequence of any delay in furnishing transcripts to appellate counsel ( see People v. Gibbs, 280 A.D.2d 698, 698-699, lv denied 96 N.Y.2d 829; People ex rel. Nicholas v. Mantello, 187 A.D.2d 849; People v. Eldridge, 34 A.D.2d 693). The first count of the indictment was not duplicitous ( see generally CPL 200.30; People v. Davis, 72 N.Y.2d 32, 38) by virtue of the fact that it might have been interpreted as alleging both larceny by false pretenses and larceny by false promise ( see People v. Watson, 284 A.D.2d 212, 213, lv denied 97 N.Y.2d 643; People v. Pillich, 207 A.D.2d 1004, lv denied 84 N.Y.2d 938; People v. Cannon, 194 A.D.2d 496, 498-499, lv denied 82 N.Y.2d 715). Further, the People may in a single count of larceny aggregate amounts allegedly stolen by defendant from a single victim pursuant to a "'single intent and one general fraudulent plan,'" even one "carried out in successive stages" over a period of time ( People v. Rossi, 5 N.Y.2d 396, 400-401; see People v. Rosich, 170 A.D.2d 703, lv denied 77 N.Y.2d 1000; see also People v. Perlstein, 97 A.D.2d 482, 484). County Court did not err in failing to instruct the jury that unanimity was required on the theories of false pretenses and/or false promise in order to find defendant guilty of grand larceny. Juror unanimity is not required with respect to the particular method by which the larceny was committed ( see Watson, 284 A.D.2d at 213; People v. Ponnapula, 229 A.D.2d 257, 273).
The record supports the court's determination that defendant had not been placed under arrest at the time he made his statements to police ( see People v. Hyla, 291 A.D.2d 928, lv denied 98 N.Y.2d 652; People v. Corniel, 258 A.D.2d 812, 814, lv denied 93 N.Y.2d 968; People v. Gonzalez, 246 A.D.2d 555, lv denied 91 N.Y.2d 1007). In any event, the record of the suppression hearing establishes that, before transporting defendant to the police station, police had reasonable cause to believe that defendant had violated the village ordinance in their presence, thus warranting his arrest ( see CPL 140.10 [a]; Penal Law § 10.00, [3]; see also People ex rel. Johnson v. New York State Div. of Parole, 299 A.D.2d 832, 834, lv denied 99 N.Y.2d 508; People v. Taylor, 294 A.D.2d 825; People v. Pantusco, 107 A.D.2d 854, 855-856).
The evidence is legally sufficient to support the conviction of grand larceny and the verdict is not against the weight of the evidence ( see People v. Camerman, 299 A.D.2d 174; People v. Wachulewicz, 295 A.D.2d 169, 169-170, lv denied 98 N.Y.2d 729, 732; People v. Collins, 273 A.D.2d 802, 803, lv denied 95 N.Y.2d 933; see generally People v. Bleakley, 69 N.Y.2d 490, 495). We have considered defendant's remaining contentions and conclude that they are without merit.