Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
The PEOPLE of the State of New York, Respondent, v. Michael STUART, Defendant-Appellant.
Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered October 8, 2004, convicting defendant, after a jury trial, of grand larceny in the second degree and practicing or appearing as an attorney-at-law without being admitted and registered (Judiciary Law § 478), and sentencing him to an aggregate term of 2 to 6 years, with restitution in the amount of $87,000, unanimously affirmed.
The court properly declined to instruct the jury on the theory of larceny by false promise and its special “moral certainty” standard of proof (Penal Law § 155.05[2][d] ). The evidence primarily supported a theory of larceny by false pretenses (Penal Law § 155.05[2][a] ), particularly with regard to defendant's misrepresentations as to his qualification to render legal services. Even though the evidence may have also supported the theory of larceny by false promise, the People were entitled to elect between these theories (see People v. King, 85 N.Y.2d 609, 625, 627 N.Y.S.2d 302, 650 N.E.2d 1303 [1995] ). Defendant did not preserve his claim that the court's charge actually authorized a conviction on a false promise theory, without including the statutory “moral certainty” language, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. There is nothing in the charge to suggest a false promise theory.
Defendant did not preserve (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ) his claim that the evidence was legally insufficient to establish that the victim named in the indictment was the owner of the stolen funds and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. In addition, we find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence showed that the victim had a right of possession to the funds in her corporation's bank account superior to that of defendant (see People v. Hutchinson, 56 N.Y.2d 868, 869, 453 N.Y.S.2d 394, 438 N.E.2d 1109 [1982]; People v. Marshall, 293 A.D.2d 629, 740 N.Y.S.2d 245 [2002], lv. denied 98 N.Y.2d 711, 749 N.Y.S.2d 9, 778 N.E.2d 560 [2002] ). Defendant's related argument concerning the restitution order is likewise unpreserved and without merit (see People v. Scott, 15 A.D.3d 884, 788 N.Y.S.2d 797 [2005], lv. denied 4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 [2005] ).
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: May 22, 2008
Court: Supreme Court, Appellate Division, First Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)