Opinion
December 30, 1999
Appeal from Judgment of Herkimer County Court, Kirk, J. — Grand Larceny, 2nd Degree.
Judgment unanimously affirmed.
PRESENT: GREEN, J. P., HAYES, SCUDDER AND BALIO, JJ.
Memorandum:
Defendant appeals from a judgment convicting him of grand larceny in the second degree (Penal Law § 155.40) based on evidence of his larcenous taking, by false pretenses, of more than $50,000 in workers' compensation benefits. On appeal, defendant argues that there was no larceny because Herkimer County was not the owner of the stolen money; that he could not be prosecuted for workers' compensation fraud under the grand larceny statute, but only under Workers' Compensation Law § 114 Work. Comp.; that his prosecution was ex post facto; that the Workers' Compensation Board (Board) had exclusive jurisdiction; that the People should not have been allowed to attack the Board's determinations collaterally; and that the grand larceny count under which he was convicted was the same as the dismissed insurance fraud count and should also have been dismissed. Defendant raised those arguments in a prior original proceeding and appeal in this matter ( see, Matter of Van Wie v. Kirk, 244 A.D.2d 13; People v. Van Wie, 238 A.D.2d 876), and we explicitly rejected them in the original proceeding ( see, Matter of Van Wie v. Kirk, supra, at 15, 23-26).