| People v Gibson |
| 2014 NY Slip Op 04275 [118 AD3d 1157] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Richard L. Gibson, Appellant. |
G. Scott Walling, Queensbury, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered February 22, 2013, upon a verdict convicting defendant of the crimes ofgrand larceny in the fourth degree and falsifying business records in the seconddegree.
As the manager of a Dollar General store, defendant was tasked with depositing theday's earnings into the store's bank account at the end of his shift. On October 16, 2011,he deposited the day's receipts, but allegedly withheld $1,000.05. Based upon allegationsthat he falsified one of the deposit slips and related financial records in order to steal themoney undetected, defendant was charged with grand larceny in the fourth degree andfalsifying business records in the second degree. Following a jury trial, he was convictedas charged and sentenced to, among other things, a three-year conditional discharge andordered to pay restitution. He now appeals, arguing that the evidence is legallyinsufficient to support his convictions and that the jury's verdict is against the weight ofthe evidence.
A person is guilty of grand larceny in the fourth degree "when, with intent to depriveanother of property or to appropriate the same to himself or [herself]," he or she stealsproperty exceeding $1,000 in value (Penal Law § 155.05 [1]; seePenal Law § 155.30 [1]; People v Abbott, 107 AD3d 1152, 1154 [2013]; People v Mallia, 52 AD3d964, 965 [2008], lv denied 11 NY3d 738 [2008]). Additionally, a personcommits the crime of falsifying business records in [*2]the second degree "when, with intent to defraud, he [or shem]akes or causes a false entry in the business records of an enterprise . . . or[o]mits to make a true entry" in such records (Penal Law § 175.05 [1], [3];see People v Saxton, 75AD3d 755, 758-759 [2010], lv denied 15 NY3d 924 [2010]). Both larcenousand fraudulent intent are rarely susceptible to proof by direct evidence and mustordinarily be inferred from the circumstances surrounding a defendant's actions (seePeople v Norman, 85 NY2d 609, 619-620 [1995]; People v Monteiro, 93 AD3d898, 899 [2012], lv denied 19 NY3d 964 [2012]; People v Russell, 41 AD3d1094, 1096 [2007], lv denied 10 NY3d 964 [2008]).
According to the testimony of the district manager of Dollar General, a tender reportis generated by the cash register over the course of a day that accounts for each itemscanned for purchase, and such report "cannot be altered." He testified that the tenderreport for October 16, 2011 listed the day's cash earnings as $3,344.84, butdefendant—the only store employee who had access to these funds—filledout the bank deposit slip, the store's deposit log and the tear strip on the bank deposit bagindicating a cash total of $2,344.79 on each. Further, although defendant made threedeposits on October 16, 2011, he recorded one of the deposits as being made on October17, 2011, failed to list the amount of each currency denomination—in violation ofthe practices generally followed by Dollar General and defendant himself—andused different color inks as if to indicate that the deposits were made on different dates.Both the district manager and the store's loss prevention manager found it suspicious thatdefendant knew the currency denominations when interviewed one month after the fundswent missing and that the denominations he provided added up to the approximateamount that should have been deposited, rather than the actual amount that wasdeposited. Additionally, the bank teller who received defendant's night deposit testifiedthat the deposit in question contained only $2,344.79 in cash, that there was no evidencethat such deposit bag had been tampered with and that, if she had made an error, anotherteller or the bank's computer system would have caught it.
Upon viewing the evidence in the light most favorable to the People, we find thatdefendant's wrongful intent is readily inferable and that a valid line of reasoning existsfrom which a rational trier of fact could have found beyond a reasonable doubt thatdefendant committed the crimes for which he was convicted (see People vNorman, 85 NY2d at 619-620; People v Abbott, 107 AD3d at 1155;People v Mallia, 52 AD3d at 966; People v Miller, 23 AD3d 699, 700-701 [2005], lvdenied 6 NY3d 815 [2006]; People v Fuschino, 278 AD2d 657, 658-659[2000], lv denied 96 NY2d 800 [2001]). Likewise, we are unconvinced that theverdict is contrary to the weight of the evidence. Defendant maintains that the evidencesupports a finding that the deposit shortage was due to his mistake and the bank's error ortheft, challenges the accuracy of the tender report at issue here and notes his otherwiseunblemished record with the store, which earned him a bonus that he would havereceived less than a week after he was terminated. However, these issues were fullyexplored during the trial and presented for the jury's consideration, which was free toaccept certain pieces of evidence and reject others, as well as to credit the testimonyimplicating defendant in the crimes (see People v Carr-El, 99 NY2d 546, 547[2002]; People v Dunbar,31 AD3d 895, 896 [2006], lv denied 7 NY3d 867 [2006]). Considering theevidence in a neutral light and "weigh[ing] the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony," we cannot say that the jury failed to give the evidence the weight that itshould have been accorded (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotation marks and citation omitted]; see People v Fomby, 101 AD3d 1355, 1356 [2012]; People v Race, 78 AD3d1217, 1221 [2010], lv denied 16 NY3d 835 [2011]; People v Saxton,75 AD3d at 759).
[*3] Lahtinen, Garry andRose, JJ., concur. Ordered that the judgment is affirmed.