People v. McKie

Appellate Division of the Supreme Court of New York

People v. McKie

215 A.D.2d 694, 628 N.Y.S.2d 491, 1995 N.Y. App. Div. LEXIS 5426

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

DecidedMay 22, 1995

StatusPublished

This text of 215 A.D.2d 694 (People v. McKie) 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. McKie, 215 A.D.2d 694, 628 N.Y.S.2d 491, 1995 N.Y. App. Div. LEXIS 5426 (N.Y. Ct. App. 1995).

Pincite

Opinion

Appeal by the [695]*695defendant from a judgment of the Supreme Court, Kings County (Lipp, J.), rendered April 8, 1993, convicting him of grand larceny in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

Contrary to the People’s contention, the issue of the legal sufficiency of the evidence has been preserved for appellate review, and we find that the evidence adduced at trial was insufficient to sustain the conviction (see, Penal Law § 155.05 [2] [d]; § 155.35).

The People contended that the defendant committed the crime of grand larceny in the third degree in that he obtained money from the complainants by his allegedly false promise that the money would be repaid from the revenue obtained from his restaurant business (see, Penal Law § 155.05 [2] [d]; § 155.35). However, the testimony adduced at trial reveals that the defendant truthfully disclosed to the complainants that the money was to be invested in the defendant’s restaurant known as "Trade Winds”, and the defendant stated that the money was in fact so invested. Moreover, the complainants executed a written agreement with "Trade Winds, Inc.” in which it was stated that repayment was to be made to the complainants out of future profits derived from the restaurant. Neither the complainants’ failure to investigate the defendant’s books and records before they invested, nor the subsequent financial failure of the Trade Winds restaurant, constitutes evidence that the defendant deceived or otherwise defrauded the complainants.

Accordingly, the evidence adduced at trial did not establish that it was the defendant’s intention or belief not to perform his investment or repayment promises to the complainants (see, Penal Law § 155.05 [2] [d]; see, People v Churchill, 47 NY2d 151; People v Campobello, 154 AD2d 911). Bracken, J. P., Pizzuto, Santucci and Friedmann, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal by the [695]*695defendant from a judgment of the Supreme Court, Kings County (Lipp, J.), rendered April 8, 1993, convicting him of grand larceny in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

Contrary to the People’s contention, the issue of the legal sufficiency of the evidence has been preserved for appellate review, and we find that the evidence adduced at trial was insufficient to sustain the conviction (see, Penal Law § 155.05 [2] [d]; § 155.35).

The People contended that the defendant committed the crime of grand larceny in the third degree in that he obtained money from the complainants by his allegedly false promise that the money would be repaid from the revenue obtained from his restaurant business (see, Penal Law § 155.05 [2] [d]; § 155.35). However, the testimony adduced at trial reveals that the defendant truthfully disclosed to the complainants that the money was to be invested in the defendant’s restaurant known as "Trade Winds”, and the defendant stated that the money was in fact so invested. Moreover, the complainants executed a written agreement with "Trade Winds, Inc.” in which it was stated that repayment was to be made to the complainants out of future profits derived from the restaurant. Neither the complainants’ failure to investigate the defendant’s books and records before they invested, nor the subsequent financial failure of the Trade Winds restaurant, constitutes evidence that the defendant deceived or otherwise defrauded the complainants.

Accordingly, the evidence adduced at trial did not establish that it was the defendant’s intention or belief not to perform his investment or repayment promises to the complainants (see, Penal Law § 155.05 [2] [d]; see, People v Churchill, 47 NY2d 151; People v Campobello, 154 AD2d 911). Bracken, J. P., Pizzuto, Santucci and Friedmann, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

215 A.D.2d 694, 628 N.Y.S.2d 491, 1995 N.Y. App. Div. LEXIS 5426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mckie-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack