People v. Loncto

91 A.D.2d 1196, 459 N.Y.S.2d 185, 1983 N.Y. App. Div. LEXIS 16554

Opinion

— Judgment modified, on the law and facts, and, as modified, affirmed, in accordance with memorandum. All concur, Simons, J., not participating. Memorandum: Overwhelming evidence in the record supports defendant’s conviction of grand larceny in the second degree under the second count of the indictment and his conviction of forgery in the third degree as a lesser included offense under the third count of the indictment. The evidence is insufficient as a matter of law, however, to support defendant’s conviction of grand larceny in the second degree under the first count of the indictment. The judgment must be modified to reverse that conviction and the first count of the indictment must be dismissed. The People failed to prove that defendant ever had in his possession, or had dominion over, the $2,500 alleged in that count to have been stolen (see People v Trippoda, 40 AD2d 388, 393-395). Thus viewed, it is unnecessary to consider defendant’s argument that prosecution under the first count of the indictment is barred by the Statute of Limitations. We have examined the other issues raised by defendant and find them to be without merit. (Appeal from judgment of Supreme Court, Niagara County, Marshall, J. — grand larceny, second degree, and other charges.) Present — Dillon, P. J., Simons, Callahan, Boomer and Moule, JJ.