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People v. Scalise

288 N.Y. 220 Court N.Y. Decision date 1942-06-04 English

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p. 220
The People of the State of New York, Respondent, v. George Scalise, Appellant.
Argued April 27, 1942;
decided June 4, 1942.
p. 221
Martin W. Littleton, Irving Goldberg, Richard H. Brown, John Kadel and David Stein for appellant.
The proof failed to establish a violation of section 889 of the Penal Law under which all of the forgery counts were framed. (People v. Underhill, 142 N. Y. 38 ; People v. Anderson, 210 App. Div. 59 .)
Frank S. Hogan, District Attorney (Stanley H. Fuld and Richard G. Denser of counsel), for respondent.
The defendant’s guilt of the crime of grand larceny by embezzlement as charged in the 58th count was established beyond a reasonable doubt. (People v. Shears, 158 App. Div. 577 ; 209 N. Y. 610 ; People v. Barnes, 158 App. Div. 712 ; 210 N. Y. 612 ; People v. Haupt, 247 N. Y. 369 ; Dunn v. United States, 284 U. S. 390 ; People v. Miller, 169 N. Y. 339 ; People v. Geyer, 196 N. Y. 364 .) The defendant’s guilt of the forgeries charged in counts 6, 13, 19 and 45 of the indictment was established beyond a reasonable doubt. (People v. Anderson, 210 App. Div. 59 ; 239 N. Y. 534 ; People ex rel. Isaacson v. Fallon, 202 N. Y. 456 ; People v. Abeel, 182 N. Y. 415 ; People v. Von Brandenburg, 241 N. Y. 128 ; People v. Gaimari, 176 N. Y. 84 ; Hays v. Comm., 211 Ky. 716 ; Smith v. Farley, 155 App. Div. 813 ; Koch v. Fox, 71 App. Div. 288 ; State v. Omodt, 198 Minn. 165 .)

There was sufficient proof to justify conviction on the 58th count charging grand larceny by embezzlement. As to the four forgery counts, however, which charge violations of subdivision 1 of the first part of section 889 of the Penal Law, the evidence is insufficient since there is no showing of a falsification of any record by alteration, erasure, obliteration or destruction. (People v. Underhill, 142 N. Y. 38 ; People v. Anderson, 239

p. 222
N. Y. 534 .) The judgment of the Appellate Division should be modified so as to provide that the judgment of conviction as to the 6th, 13th, 19th and 45th counts of the indictment be reversed and those counts dismissed, otherwise affirmed.

The judgments should be modified in accordance with this opinion and as so modified affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.

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