5 N.Y.2d 396 | NY | 1959
The County Court allowed a demurrer to the first count of a 19-count indictment and the People appealed to the Appellate Division. That court denied a motion to dismiss the appeals, and reversed the order allowing the demurrer. Defendant appeals to this court by permission.
The general theory of the whole indictment is that defendant, a physician, cheated a “Blue Shield ” insurance corporation
Two questions are presented by this appeal and each is of first impression in this court. First, we must decide whether there was a right of appeal from the County Court order allowing the demurrer as to the first count only. In effect, we answered that question affirmatively in People v. Mullens (298 N. Y. 606). Defendant says, correctly, that the only applicable statute is subdivision 1 of section 518 of the Code of Criminal Procedure which allows an appeal by the People ‘1 From a judgment for the defendant, on a demurrer to the indictment ”. That means, says defendant, a judgment sustaining a demurrer to the whole of an indictment. Until 1945 and because of a holding or dictum in People v. Rosenheimer (209 N. Y. 115), it was assumed at least in some courts (People ex rel. Weeks v. Platt, 173 App. Div. 451, 453; People v. Mulligan, 259 App. Div. 750) that section 323 of the Code of Criminal Procedure at the point where it permitted a defendant to “ demur to the indictment ” meant the whole indictment. In other words, before 1945 if one count of a multi-count indictment was good the entire indictment was good as against a demurrer.
In 1945 (L. 1945, ch. 629) section 323 of the Code of Criminal Procedure was amended to allow a defendant to demur “ to an indictment, or any count thereof ”. But the Legislature never changed subdivision 1 of section 518 {supra) which continues to authorize an appeal by the People “ From a judgment
Next is the question of whether the demurrer. should be aEowed—that is, the question of the sufficiency as a pleading of the first degree grand larceny count. That count accumulates aE nine of these aEeged incidents into one taking, in an effort to apply People v. Cox (286 N. Y. 137, 145, supra). The Cox holding was that “ the People may prosecute for a single crime a defendant who, pursuant to a single intent and one general fraudulent plan, steals in the aggregate as a felon and not as a petty thief.” The argument against applying the Cox rationale here is that, since these are aEeged to have been false pretense takings (see Penal Law, §§ 1290, 1290-a) with a separate pretense each time, there needs must have been in each instance a separate intent and a new enterprise. Of course, on
The order appealed from should be affirmed.
Chief Judge Conway and Judges Dye, Fund, Froessel, Van Voorhis and Burke concur.
Order affirmed.