PEOPLE v. McCUMISKEY (2004)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Shawn D. McCUMISKEY, Defendant-Appellant. (Appeal No. 1.)

Decided: November 19, 2004

PRESENT: HURLBUTT, J.P., SCUDDER, KEHOE, GORSKI, AND MARTOCHE, JJ.

Norman P. Effman, Attica, for Defendant-Appellant. Lawrence Friedman, District Attorney, Batavia (Kevin T. Finnell of Counsel), for Plaintiff-Respondent.

In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of two counts of falsifying business records in the first degree (Penal Law § 175.10). We reject defendant's contention that the verdict must be set aside because the jury was unable to reach a verdict on the count charging defendant with grand larceny. “A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof” (id.). The jury could therefore convict defendant of falsifying business records if the jury concluded that defendant had the intent to commit or conceal another crime, even if he was not convicted of the other crime.

We reject the contention of defendant in appeal No. 2 that he did not receive effective assistance of counsel (see People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Genesee County Court for proceedings pursuant to CPL 460.50(5).

MEMORANDUM:

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