| People v Barry |
| 2007 NY Slip Op 10203 [46 AD3d 1340] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Patricia Barry,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Jessica B. Birkahn of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered November 18, 2004. The judgment convicted defendant, upon a jury verdict, of grandlarceny in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting her after a jury trial of grandlarceny in the third degree (Penal Law § 155.35) arising from her theft of prescriptionmedication from the pharmacy where she was employed. The People presented evidence thatdefendant took the medication from the pharmacy over a period of 10 months for her personaluse, to treat migraine headaches. We agree with defendant that Supreme Court erred in refusingto charge the jury that the People were required to prove that she had a single, ongoing intent tosteal the medication in order to find her guilty of grand larceny in the third degree. Defendant iscorrect that, in order to find her guilty of separate acts of theft in a single count of grand larceny,the jury had to find that she had a "single intent, carried out in successive stages" (People vRossi, 5 NY2d 396, 401 [1959]; seePeople v Tighe, 2 AD3d 1364, 1365 [2003], lv denied 2 NY3d 747 [2004];People v Fayette, 239 AD2d 696, 697 [1997], lv denied 90 NY2d 904 [1997]).Without that single intent, however, defendant's acts constituted a series of petit or grandlarcenies (see Rossi, 5 NY2d at 400-401; People v Cox, 286 NY 137, 142-143[1941], rearg denied 286 NY 706 [1941]). The court's failure to instruct the jury withrespect to that distinction prevented the jury from properly evaluating the evidence. We thereforereverse the judgment and grant a new trial. In view of our decision, it is not necessary to addressdefendant's remaining contentions. Present—Scudder, P.J., Martoche, Smith, Lunn andPine, JJ.