| People v Baffi |
| 2014 NY Slip Op 05552 [119 AD3d 952] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Tula Baffi, Appellant. |
Joseph R. Faraguna, Sag Harbor, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer and JosephMogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Grella, J.), rendered June 10, 2011, convicting her of grand larceny in the third degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Nassau County, for further proceedingsconsistent with CPL 160.50.
The defendant was convicted of grand larceny in the third degree (Penal Law§§ 155.05 [2] [d]; 155.35 [1]) for allegedly promising to engage incertain conduct for the purpose of bringing the complainants' children from Peru to theUnited States in exchange for a fee of $15,000, while having no intent to engage in suchconduct.
Viewed in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), the evidence did not establish that the defendant had therequisite intent to commit the crime of larceny by false promise. The People failed toestablish with legally sufficient evidence that, at the time that the defendant made thealleged promise to engage in conduct that would permit her to bring the complainants'children into this country, she did not intend to engage in such conduct (see PenalLaw §§ 155.05 [1], [2] [d]; 155.35 [1]). "In any prosecution forlarceny based upon a false promise, the defendant's intention or belief that the promisewould not be performed may not be established by or inferred from the fact alone thatsuch promise was not performed. Such a finding may be based only upon evidenceestablishing that the facts and circumstances of the case are wholly consistent with guiltyintent or belief and wholly inconsistent with innocent intent or belief, and excluding to amoral certainty every hypothesis except that of the defendant's intention or belief that thepromise would not be performed" (see People v Milbauer, 128 AD2d 730,730-731 [1987]; Penal Law § 155.05 [2] [d]). Since the only evidencesupporting the allegation that the defendant harbored an undisclosed intention not toengage in the promised conduct that would enable the complainants' children to enter theUnited States was that she did not in fact engage in that conduct, the defendant'sconviction was not supported by legally sufficient evidence. Dillon, J.P., Chambers, Halland Maltese, JJ., concur.