| People v Perry |
| 2014 NY Slip Op 01077 [114 AD3d 1282] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Appellant, v David Perry, Respondent. |
—[*1] John M. Scanlon, Binghamton, for defendant-respondent.
Appeal from an order of the Steuben County Court (Joseph W. Latham, J.), enteredNovember 28, 2012. The order granted that part of defendant's omnibus motion seekingto dismiss the indictment.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw, that part of the motion seeking to dismiss the indictment is denied, the indictment isreinstated, and the matter is remitted to Steuben County Court for further proceedings onthe indictment.
Memorandum: On appeal from an order granting that part of defendant's omnibusmotion seeking to dismiss the indictment pursuant to CPL 30.10 (2) (b), the Peoplecontend that County Court erred in determining that the statute of limitations hadexpired. We agree. Defendant was charged by an indictment with grand larceny in thesecond degree based on the theory that he stole in excess of $50,000 in New York Stateretirement disability benefits to which he was not entitled. Defendant applied for thosebenefits in 2004 or 2005, and received payments from February 17, 2005 throughFebruary 28, 2012.
It is well settled that the People may aggregate "a series of single larcenies governedby a common fraudulent scheme or plan even though the successive takings extendedover a long period of time" (People v Rosich, 170 AD2d 703, 703 [1991], lvdenied 77 NY2d 1000 [1991]; see People v Cox, 286 NY 137, 142-143[1941], rearg denied 286 NY 706 [1941]; People v Tighe, 2 AD3d 1364, 1365 [2003], lvdenied 2 NY3d 747 [2004]). The offense of grand larceny as alleged in this case istherefore properly characterized as a continuing crime (see People v First MeridianPlanning Corp., 86 NY2d 608, 615-616 [1995]), and "the [s]tatute of [l]imitations ofa continuous crime is governed by the termination and not the starting date of theoffense" (People v Eastern Ambulance Serv., 106 AD2d 867, 868 [1984]; see People v DeBeer, 35 AD3d1275, 1276 [2006], lv denied 8 NY3d 921 [2007]). The statute of limitationsin this case did not begin to run until the final taking in February 2012 (see generally People vRandall-Whitaker, 55 AD3d 931, 931 [2008], lv denied 12 NY3d 787[2009]), and the prosecution commenced shortly thereafter in March 2012 was thustimely pursuant to CPL 30.10 (2) (b).
Defendant contends that the statute of limitations began to run at the time of theallegedly fraudulent filing, relying on People v O'Boyle (136 Misc 2d 1010,1012-1013 [1987]). That case, however, is inapposite inasmuch as the defendant in thatcase was charged with insurance fraud, whereas defendant in this case is charged withgrand larceny. Present—Centra, J.P., Peradotto, Lindley, Sconiers and Whalen, JJ.