People v. Zeller

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered May 19, 2014, upon a verdict convicting defendant of the crime of grand larceny in the third degree (two counts).

In October 2013, defendant was charged by indictment with two counts of grand larceny in the third degree, both based on a series of dealings in which defendant induced a vulnerable Social Security disability recipient to part with over $3,000 in cash over a 13-month period. The first count alleged a theory of larceny by false pretenses and the second count alleged a theory of larceny by false promises. Defendant was convicted by a jury as charged and sentenced as a second felony offender to 3½ to 7 years in prison on both counts, with the sentences to run concurrently. She now appeals, contending only that the verdict was against the weight of the evidence. We affirm.

“A person is guilty of grand larceny in the third degree when he or she steals property and . . . when the value of the property exceeds [$3,000]” (Penal Law § 155.35 [1]). For a conviction on the charge of grand larceny in the third degree by false pretenses, the “evidence must establish beyond a reasonable doubt that [the] defendant obtained possession of money of another by means of an intentional false material statement about a past or presently existing fact upon which the victim relied in parting with the money” (People v Trimmer, 30 AD3d 820 , 822 [2006] [internal quotation marks and citations omitted]; see Penal Law § 155.05 [2] [a]). With regard to the second count of the indictment, as relevant here, “[a] person obtains property by false promise when, pursuant to a scheme to defraud, he [or she] obtains property of another by means of a representation, express or implied, that he [or she] . . . will in the future engage in particular conduct, and when he [or she] does not intend to engage in such conduct” (Penal Law § 155.05 [2] [d]). A conviction on this theory requires the People to establish “that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief, and excluding to a moral certainty every hypothesis except that of the defendant’s intention or belief that the promise would not be performed” (Penal Law § 155.05 [2] [d]).

In support of both theories, the People established that defendant first made the acquaintance of the victim’s brother and induced him to provide money on the false representations that it was needed to pay for diabetes medication for defend

The People were allowed to present proof of a prior scheme in which defendant befriended another vulnerable victim, a former roommate, and induced her to write checks to defendant. Defendant agreed to make deposits into the roommate’s checking account to cover the checks, but never did so. Defendant told the roommate that the reimbursement would come from a nonexistent trust fund. An investigator from the St. Lawrence County District Attorney’s office testified that, when he interviewed defendant about that scheme, she admitted that “she had no intentions of putting the money into [the roommate’s] account.”

Based on the evidence of the course of dealings between defendant and the victim, defendant may be convicted of larceny by both false pretenses and false promises (see People v Wachulewicz, 295 AD2d 169 , 170 [2002], lv denied 98 NY2d 732 [2002]). The falsity of defendant’s material representations and promises to the victim was not disputed. Upon our independent review of the evidence “and considering it in a neutral light, while according deference to the jury’s superior ability to evaluate credibility” (People v Brooks, 127 AD3d 1407 , 1409 [2015]; accord People v Gamble, 135 AD3d 1078 , 1080 [2016], lv denied 27 NY3d 997 [2016]), we find that the jury could readily infer that defendant never intended to repay the money

McCarthy, J.P., Rose, Devine and Clark, JJ., concur.

Ordered that the judgment is affirmed.