People v. Twoguns

May 11, 1990
Versions:161 A.D.2d 1193
555 N.Y.S.2d 526
1990 N.Y. App. Div. LEXIS 9212

Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of 36 counts of a 37-count indictment, defendant argues that the proof with respect to certain counts was insufficient to establish guilt to a moral certainty. We disagree. That standard applies only with respect to the counts charging him with larceny by false promise (Penal Law § 155.05 [2] [d]). The fact that defendant did not intend to perform the work at the time he entered into the contracts was established by proof of his repeated failure to refund money or to complete contracts (see, People v De Muirier, 106 AD2d 266, 267); proof of "obviously false statements” made by him, and his failure to return phone calls made by the complainants (People v Rolchigo, 33 AD2d 1060, 1061, affd 28 NY2d 644); proof of similar transactions involving a common scheme or plan (see, People v Coloney, 98 AD2d 969); and, importantly, proof that defendant left the State for North Carolina, where he was arrested (see, People v Luongo, 47 NY2d 418, 429-430; see also, People v Hamilton, 155 AD2d 978; cf., People v Churchill, 47 NY2d 151; People v Campobello, 154 AD2d 911; People v Reynolds, 147 AD2d 961, lv denied 74 NY2d 746; People v Ferry, 142 AD2d 994, lv denied 73 NY2d 891).

We have examined defendant’s remaining contentions and find them lacking in merit. (Appeal from judgment of Cattaraugus County Court, Kelly, J.—grand larceny, second degree.) Present—Denman, J. P., Green, Pine, Balio and Lawton, JJ.