| People v Abeel |
| 2009 NY Slip Op 08362 [67 AD3d 1408] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Christopher E.Abeel, Respondent. |
—[*1]
Appeal from an order of the Steuben County Court (Marianne Furfure, J.), entered March 10,2009. The postverdict order granted defendant's motion to dismiss the indictment.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, themotion is denied, the indictment and the verdict are reinstated, and the matter is remitted toSteuben County Court for sentencing.
Memorandum: The People appeal from a postverdict order, following a jury trial, grantingdefendant's motion to dismiss the indictment pursuant to CPL 290.10 (1). Defendant was chargedwith grand larceny in the third degree (Penal Law § 155.35) in an indictment alleging thathe stole $3,125. While neither the indictment nor the bill of particulars narrowed theprosecution's theory any further, the People proceeded at trial on the theory that defendant stolethe money by making a false promise (see § 155.05 [2] [d]). At trial, the Peopleintroduced evidence that defendant bid a construction project at St. James Episcopal Church(Church), estimating the costs of both materials and labor, and that defendant was awarded thecontract. Before beginning any repair work, he received $3,125, which was his estimate of thecost of materials for the project. The People further presented evidence that defendant neverbegan to work on the project and never returned the money.
As the People correctly contend, County Court erred in granting the motion inasmuch as theevidence is legally sufficient to support a conviction of larceny by false promise. "A personobtains property by false promise when, pursuant to a scheme to defraud, he obtains property ofanother by means of a representation, express or implied, that he [or she] . . . will inthe future engage in particular conduct, and when he [or she] does not intend to engage in suchconduct" (Penal Law § 155.05 [2] [d]). It is well established that, "[i]n any prosecution forlarceny based upon a false promise, the defendant's intention or belief that the promise would notbe performed may not be established by or inferred from the fact alone that such promise was notperformed" (id.). Rather, the defendant's "intent must be inferred from the facts andcircumstances" (People v Carey, 103 AD2d 934, 934 [1984]). Viewing the evidence inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]),we conclude that " ' [t]he inference of wrongful intent logically flow[s] from the proven facts,'and there is a 'valid line of reasoning [that] could lead a rational trier of fact . . . toconclude that the defendant [*2]committed the charged crime,'i.e., larceny by false promise" (People vBarry, 34 AD3d 1258 [2006], lv denied 8 NY3d 919 [2007], quoting Peoplev Norman, 85 NY2d 609, 620 [1995]; see People v Miller, 23 AD3d 699, 701 [2005], lv denied 6NY3d 815 [2006]).
The evidence presented by the People established that defendant bid on and was awarded aconstruction project for the Church and that, at the time he received the $3,125, he had a presentintent not to perform that work (see Norman, 85 NY2d at 623). Defendant received themoney on May 2, 2007. On that date or shortly thereafter, defendant spent all of the moneyreceived from the Church "on past-due personal and business bills without using any of it topurchase materials for [the Church's repair work]" (id.; see People v Patterson,135 AD2d 883, 884 [1987]). Defendant failed to return calls from Church officials and, whenquestioned by the investigating Trooper, defendant "offered a series of dubious excuses forfailing to [perform the work]" (Norman, 85 NY2d at 623). Indeed, viewing the evidencein the light most favorable to the People, defendant gave "patently false statement[s]" to theinvestigating Trooper by claiming that he had been in jail for three months and that he had usedthe money to pay his employees' wages (id.). The People presented testimonyestablishing that defendant was in jail for only 18 days and that he did not use any of the moneyreceived from the Church to pay employee wages.
In granting defendant's motion, the court concluded that the People had impermissiblychanged the theory of the prosecution. We cannot agree. Throughout the trial, the Peoplesubmitted evidence that defendant promised to perform repair work and received a sum ofmoney based on that promise. In his comments on summation, however, the prosecutor discussedthat promise as well as a second promise, which was that defendant promised to use the moneyfor the sole purpose of buying the materials for the project. The prosecutor argued that, whendefendant received the money, he had no intention to use the money for such materials. Weagree with the court that there is no evidence that defendant made any promise concerning themanner in which he would spend the money received. He estimated only that the cost of thematerials for the project would be $3,125, and he requested that money up front.
There are of course cases in which the evidence at trial or the prosecutor's comments onsummation impermissibly change the theory of the prosecution (see People v Greaves, 1 AD3d979, 980-981 [2003]). In such cases, the courts have concluded that, "[i]n presentingtheories different from those set forth in the indictment and bill of particulars . . . ,the People violated defendant's 'fundamental and nonwaivable' right to be tried on only thosecrimes charged in the indictment . . . as limited by the bill of particulars"(id. at 980). Here, however, the People did not change their theory of the prosecution.Neither the indictment nor the bill of particulars specified any particular promise upon which theprosecution was based, and we conclude that "defendant received the requisite fair notice of theaccusations against him" (People vMcCallar, 53 AD3d 1063, 1065 [2008], lv denied 11 NY3d 833 [2008] [internalquotation marks omitted]; see generally People v Grega, 72 NY2d 489, 495 [1988]; People v Wilson, 61 AD3d 1269,1271-1272 [2009]). Although the prosecutor mentioned both promises on summation, he stressedthat "most basically," defendant promised "to do the job." The fact that defendant used thematerials money for other purposes is evidence supporting the inference that, when defendantreceived the money, he had no intention to perform the work. Present—Hurlbutt, J.P.,Centra, Fahey, Carni and Pine, JJ.