THE PEOPLE OF THE STATE OF NEW YORK APPELLANT v. DAVID PERRY DEFENDANT RESPONDENT

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

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, v. DAVID PERRY, DEFENDANT–RESPONDENT.

KA 13–00563

Decided: February 14, 2014

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR APPELLANT. JOHN M. SCANLON, BINGHAMTON, FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, that part of the motion seeking to dismiss the indictment is denied, the indictment is reinstated, and the matter is remitted to Steuben County Court for further proceedings on the indictment.

Memorandum:  On appeal from an order granting that part of defendant's omnibus motion seeking to dismiss the indictment pursuant to CPL 30.10(2)(b), the People contend that County Court erred in determining that the statute of limitations had expired.   We agree.   Defendant was charged by an indictment with grand larceny in the second degree based on the theory that he stole in excess of $50,000 in New York State retirement disability benefits to which he was not entitled.   Defendant applied for those benefits in 2004 or 2005, and received payments from February 17, 2005 through February 28, 2012.

It is well settled that the People may aggregate “a series of single larcenies governed by a common fraudulent scheme or plan even though the successive takings extended over a long period of time” (People v. Rosich, 170 A.D.2d 703, 703, lv denied 77 N.Y.2d 1000;  see People v. Cox, 286 N.Y. 137, 142–143, rearg. denied 286 N.Y. 706;  People v. Tighe, 2 AD3d 1364, 1365, lv denied 2 NY3d 747).   The offense of grand larceny as alleged in this case is therefore properly characterized as a continuing crime (see People v First Meridian Planning Corp., 86 N.Y.2d 608, 615–616), and “the [s]tatute of [l]imitations of a continuous crime is governed by the termination and not the starting date of the offense” (People v. Eastern Ambulance Serv., 106 A.D.2d 867, 868;  see People v. DeBeer, 35 AD3d 1275, 1276, lv denied 8 NY3d 921).   The statute of limitations in this case did not begin to run until the final taking in February 2012 (see generally People v. Randall–Whitaker, 55 AD3d 931, 931, lv denied 12 NY3d 787), and the prosecution commenced shortly thereafter in March 2012 was thus timely pursuant to CPL 30.10(2)(b).

Defendant contends that the statute of limitations began to run at the time of the allegedly fraudulent filing, relying on People v. O'Boyle (136 Misc.2d 1010, 1012–1013).   That case, however, is inapposite inasmuch as the defendant in that case was charged with insurance fraud, whereas defendant in this case is charged with grand larceny.

Frances E. Cafarell

Clerk of the Court