| People v Zeller |
| 2017 NY Slip Op 04915 [151 AD3d 1272] |
| June 15, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Bobbie Jo Zeller, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Mulvey, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered May 19, 2014, upon a verdict convicting defendant of the crime of grand larceny inthe third degree (two counts).
In October 2013, defendant was charged by indictment with two counts of grand larceny inthe third degree, both based on a series of dealings in which defendant induced a vulnerableSocial Security disability recipient to part with over $3,000 in cash over a 13-month period. Thefirst count alleged a theory of larceny by false pretenses and the second count alleged a theory oflarceny by false promises. Defendant was convicted by a jury as charged and sentenced as asecond felony offender to 3
" '[A] weight of the evidence challenge . . . requires consideration of theadequacy of the evidence as to each element of the crimes' " (People v Perillo, 144 AD3d 1399,1400 [2016], lv denied 29 NY3d 951 [2017], quoting People v Cruz, 131 AD3d 724, 725 [2015], lv denied 26NY3d 1087 [2015]). In our review, "we view the evidence in a neutral light and, while givingdeference to the jury's credibility determinations, weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony" (People v Royster, 107AD3d 1298, 1299 [2013] [internal quotation marks and citations omitted], lv denied22 NY3d 958 [2013]). Our deference to the jury's resolution of the [*2]credibility issues is due to its unique opportunity "to view thewitnesses and observe their demeanor throughout this process" (People v Shoemaker, 119 AD3d1073, 1075 [2014], lv denied 25 NY3d 992 [2015]; accord People v Lawrence, 141 AD3d828, 829 [2016], lv denied 28 NY3d 1073 [2016]).
"A person is guilty of grand larceny in the third degree when he or she steals property and. . . when the value of the property exceeds [$3,000]" (Penal Law§ 155.35 [1]). For a conviction on the charge of grand larceny in the third degree byfalse pretenses, the "evidence must establish beyond a reasonable doubt that [the] defendantobtained possession of money of another by means of an intentional false material statementabout a past or presently existing fact upon which the victim relied in parting with the money"(People v Trimmer, 30 AD3d820, 822 [2006] [internal quotation marks and citations omitted]; see Penal Law§ 155.05 [2] [a]). With regard to the second count of the indictment, as relevanthere, "[a] person obtains property by false promise when, pursuant to a scheme to defraud, he [orshe] obtains property of another by means of a representation, express or implied, that he [or she]. . . will in the future engage in particular conduct, and when he [or she] does notintend to engage in such conduct" (Penal Law § 155.05 [2] [d]). A conviction onthis theory requires the People to establish "that the facts and circumstances of the case arewholly consistent with guilty intent or belief and wholly inconsistent with innocent intent orbelief, and excluding to a moral certainty every hypothesis except that of the defendant'sintention or belief that the promise would not be performed" (Penal Law § 155.05[2] [d]).
In support of both theories, the People established that defendant first made the acquaintanceof the victim's brother and induced him to provide money on the false representations that it wasneeded to pay for diabetes medication for defendant's son, that she was employed by hospice andthat she was going to repay the funds from a settlement that she was about to receive from anonexistent claim against the St. Lawrence County Sheriff's Department. In the beginning, thevictim's brother borrowed the money from the victim to loan to defendant; eventually, defendantmet the victim and obtained a series of loans directly from her. The victim testified that she feltbad for defendant's son and, based on her belief that defendant was her friend, she trusteddefendant. The victim was dependent upon monthly disability benefits and, ultimately, the loansto defendant resulted in an overdraft on the victim's checking account and her arrest for issuing abad check. Defendant told both the victim and her brother that she did not want any checkswritten in her name and that they were not to tell anyone else about the loans. Oncross-examination of the victim and her brother, defense counsel managed to expose someinconsistencies in their testimony relating to the period of time over which the thefts took placeand the exact amounts involved. However, with respect to the amount of the thefts, defendant didnot offer any "competing calculations for the jury to weigh" (People v Niver, 45 AD3d 1051, 1052 [2007], lv denied 10NY3d 769 [2008]).
The People were allowed to present proof of a prior scheme in which defendant befriendedanother vulnerable victim, a former roommate, and induced her to write checks to defendant.Defendant agreed to make deposits into the roommate's checking account to cover the checks,but never did so. Defendant told the roommate that the reimbursement would come from anonexistent trust fund. An investigator from the St. Lawrence County District Attorney's officetestified that, when he interviewed defendant about that scheme, she admitted that "she had nointentions of putting the money into [the roommate's] account."
Based on the evidence of the course of dealings between defendant and the victim, defendantmay be convicted of larceny by both false pretenses and false promises (see People vWachulewicz, 295 AD2d 169, 170 [2002], lv denied 98 NY2d 732 [2002]). Thefalsity of defendant's material representations and promises to the victim was not disputed. Uponour [*3]independent review of the evidence "and considering it ina neutral light, while according deference to the jury's superior ability to evaluate credibility" (People v Brooks, 127 AD3d 1407,1409 [2015]; accord People vGamble, 135 AD3d 1078, 1080 [2016], lv denied 27 NY3d 997 [2016]), we findthat the jury could readily infer that defendant never intended to repay the money that the victimadvanced to her, and, mindful of the heavier burden of proof on the second count of theindictment, that such premise was established by excluding to a moral certainty every otherhypothesis except defendant's intention not to repay the money. As such, we find that the verdictwas not against the weight of the evidence.
McCarthy, J.P., Rose, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.