| People v Carandang |
| 2012 NY Slip Op 00733 [92 AD3d 432] |
| February 2, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gilbert Carandang, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered October 1,2008, convicting defendant, after a nonjury trial, of grand larceny in the third degree, andsentencing him, as a second felony offender, to a term of 3½ to 7 years, with restitution inthe amount of $36,753.15, concurrent with a term of 1
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The evidence established that defendant embezzled moneyfrom his employer by making unauthorized use of the firm's credit card and checking account forhis own benefit.
Defendant argues that his use of the credit card was not a taking of "property" under PenalLaw § 155.00 (1). However, as defendant concedes, his actions caused his employer tobecome indebted to the bank that issued the credit card. Thus, defendant deprived his employerof property in the amount of that indebtedness (see People v Parker, 91 AD3d 423 [2012]).
Defendant also argues that his use of the checking account was not a taking from an "owner"under Penal Law § 155.00 (5), because defendant and his employer allegedly had equalpossessory interests in the firm's checking account. However, the evidence established that theemployer permitted defendant to be an authorized signer on the checking account for businesspurposes only; defendant was not granted any interest in the firm's funds (compare People vO'Brien, 102 Misc 2d 246 [Nassau Dist Ct 1979] [taking from joint bank account by one ofthe [*2]joint owners is not larceny]). Regardless of whetherdefendant and the employer had equal access to the account as far as the bank was concerned, theemployer's testimony made it clear that the employer's right of possession was, at the very least,greater than defendant's. Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick andRomÁn, JJ.