People v. Akiwumi

61 A.D.2d 914, 402 N.Y.S.2d 845, 1978 N.Y. App. Div. LEXIS 10496

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1978
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered July 1, 1975, convicting the defendant after a nonjury trial of the crimes of conspiracy in the third degree, grand larceny in the second degree, grand larceny in the third degree (three counts), petit larceny, and issuing a bad check (three counts), unanimously modified, on the law, to the extent of reversing the convictions on the three counts of issuing a bad check (Counts Nos. 5, 7 and 11), and dismissing those counts of the indictment, and, as so modified, the judgment is affirmed without prejudice to any application defendant may be advised to make at Trial Term regarding the terms of his probation. The three counts of the indictment charging the defendant with issuing three separate checks on three separate dates, knowing that he had insufficient funds to cover those checks, corresponded to the three counts in the indictment charging the defendant with grand larceny in the third degree. The defendant could not, under the facts of this case, have committed the crime of grand larceny in the third degree without also committing the crime of issuing a bad check. The latter counts, therefore, are inclusory and concurrent and should be dismissed (CPL 300.30, subd 4; People v Grier, 37 NY2d 847, 848). Concur—Murphy, P. J., Lupiano, Lane, Markewich and Sullivan, JJ.