People v. Carter — 195 A.D.2d 1041

Majority

p. 1041

The People of the State of New York, Respondent, v Franklin R. Carter, Jr., Appellant.

[600 NYS2d 399]

Judgment unanimously affirmed. Memorandum: Defendant was convicted of grand larceny in the third degree for stealing sums of money out of the cash receipts of the Comfort Inn in

p. 1042

Jamestown where he was employed as a general manager. Defendant argues that a moral certainty instruction should have been given because the evidence was entirely circumstantial. We disagree.

The proof presented by the People included testimony of one of defendant’s co-workers, who saw defendant taking money from the office safe and placing it in his pocket. The witness testified that defendant stated that he was taking the money to pay his rent and would return it at a later time. There was also direct evidence that defendant entered erroneous check amounts in the motel’s ledger on the date of one of the thefts. Because the evidence was both direct and circumstantial, the trial court did not err in failing to give a circumstantial evidence charge that contained the " 'moral certainty’ ” standard (People v Barnes, 50 NY2d 375 , 380). We have considered defendant’s other contentions and find them to be without merit. (Appeal from Judgment of Chautauqua County Court, Adams, J.—Grand Larceny, 3rd Degree.) Present—Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.

Cases cited

People v. Barnes 50 NY2d 375 N.Y. 1980-06-03 at 380 p. 1042