People v. Kellar

163 A.D.2d 880, 558 N.Y.S.2d 407, 1990 N.Y. App. Div. LEXIS 9585

Opinion

Judgment unanimously affirmed. Memorandum: Defendant was convicted of grand larceny in the second degree, misuse of food stamps as a felony, and offering a false instrument for filing in the first degree. Defendant contends that the trial court erred in not submitting to the jury, as lesser included offenses of the offenses charged, grand larceny in the fourth degree, petit larceny, offering a false instrument for filing in the second degree, and misuse of food stamps as a misdemeanor. Defendant contends that, from the evidence, the jury could have found that she stole less than $1,500 required to sustain the conviction for grand larceny in the second degree (see, Penal Law § 155.35, as it existed before Nov. 1986) and that she misused food stamps of a value less than $250 (see, Social Services Law § 147, as it existed before Nov. 1986). Further, defendant contends that, from the evidence, the jury could have found that she lacked "intent to defraud”, which is an element of offering a false instrument for filing in the first degree (Penal Law § 175.35), but not an element of offering a false instrument for filing in the second degree (see, Penal Law § 175.30). We conclude, however, that there was no reasonable view of the evidence from which the jury could find that defendant stole money from the Department of Social Services, but that the amount was less than $1,500, or that defendant misused food stamps, but that the value of those stamps was less than $250. We also conclude that there was no reasonable view of the evidence from which the jury could find that, in offering the false instrument for filing, defendant lacked the intent to defraud. (Appeal from judgment of Erie County Court, Rogowski, J.—grand larceny, second degree.) Present—Doerr, J. P., Boomer, Lawton, Davis and Lowery, JJ.