People v. Hennessy

Appellate Division of the Supreme Court of New York

People v. Hennessy

236 A.D.2d 849, 654 N.Y.S.2d 77, 1997 N.Y. App. Div. LEXIS 1783

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 1997

StatusPublished

This text of 236 A.D.2d 849 (People v. Hennessy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Hennessy, 236 A.D.2d 849, 654 N.Y.S.2d 77, 1997 N.Y. App. Div. LEXIS 1783 (N.Y. Ct. App. 1997).

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Opinion

—Order unanimously affirmed. Memorandum: The People appeal from an order of County Court granting defendant’s motion to dismiss an indictment charging scheme to defraud in the first degree, petit larceny and falsifying business records in the first degree on the ground that the evidence before the Grand Jury was legally insufficient.

We agree with the People that the court erred in evaluating the proof using the "moral certainty” standard that is applicable at trial. "The sufficiency of the People’s presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Jennings, 69 NY2d 103, 114). Viewing the evidence in the light most favorable to the People, however, we conclude that it is not sufficient to support an inference that the failure of defendant to make timely payment of health insurance [850]*850premiums on behalf of his employees "was the result of a fraudulent scheme rather than a lack of ability to manage his business” (People v Rogers, 192 AD2d 1092, 1093; see also, People v Ferry, 142 AD2d 994, lv denied 73 NY2d 891). (Appeal from Order of Ontario County Court, Sirkin, J.—Dismiss Indictment.) Present—Pine, J. P., Lawton, Callahan, Doerr and Boehm, JJ.

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—Order unanimously affirmed. Memorandum: The People appeal from an order of County Court granting defendant’s motion to dismiss an indictment charging scheme to defraud in the first degree, petit larceny and falsifying business records in the first degree on the ground that the evidence before the Grand Jury was legally insufficient.

We agree with the People that the court erred in evaluating the proof using the "moral certainty” standard that is applicable at trial. "The sufficiency of the People’s presentation is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Jennings, 69 NY2d 103, 114). Viewing the evidence in the light most favorable to the People, however, we conclude that it is not sufficient to support an inference that the failure of defendant to make timely payment of health insurance [850]*850premiums on behalf of his employees "was the result of a fraudulent scheme rather than a lack of ability to manage his business” (People v Rogers, 192 AD2d 1092, 1093; see also, People v Ferry, 142 AD2d 994, lv denied 73 NY2d 891). (Appeal from Order of Ontario County Court, Sirkin, J.—Dismiss Indictment.) Present—Pine, J. P., Lawton, Callahan, Doerr and Boehm, JJ.

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Bluebook (online)

236 A.D.2d 849, 654 N.Y.S.2d 77, 1997 N.Y. App. Div. LEXIS 1783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hennessy-nyappdiv-1997.

Opinion

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