People v. McCumiskey

12 A.D.3d 1145, 784 N.Y.S.2d 816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2004
• Docket: Appeal No. 1
• Status: Published

Opinion

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered March 5, 2003. The judgment convicted defendant, upon a jury verdict, of falsifying business records in the first degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Genesee County Court for proceedings pursuant to CPL 460.50 (5).

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of two counts of falsifying business records in the first degree (Penal Law § 175.10). We reject defendant’s contention that the verdict must be set aside because the jury was unable to reach a verdict on the count charging defendant with grand larceny. “A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof’ (id.). The jury could therefore convict defendant of falsifying business records if the jury concluded that defendant had the intent to commit or conceal another crime, even if he was not convicted of the other crime.

We reject the contention of defendant in appeal No. 2 that he did not receive effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). Present—Hurlbutt, J.P., Scudder, Kehoe, Gorski and Martoche, JJ.