People v Carandang

People v Carandang 2012 NY Slip Op 00733 Decided on February 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 2, 2012
Mazzarelli, J.P., Friedman, Catterson, Renwick, Román, JJ.
6684 6526/07 2554/05

[*1]The People of the State of New York, Respondent,

v

Gilbert Carandang, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Steven Berko
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of
counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered October 1, 2008, convicting defendant, after a nonjury trial, of grand larceny in the third degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years, with restitution in the amount of $36,753.15, concurrent with a term of 1 to 4 years for violation of probation, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence established that defendant embezzled money from his employer by making unauthorized use of the firm's credit card and checking account for his own benefit.

Defendant argues that his use of the credit card was not a taking of "property" under Penal Law § 155.00(1). However, as defendant concedes, his actions caused his employer to become indebted to the bank that issued the credit card. Thus, defendant deprived his employer of property in the amount of that indebtedness (see People v Parker, AD3d , 2012 NY Slip Op 00016 [Jan 3, 2012]).

Defendant also argues that his use of the checking account was not a taking from an "owner" under Penal Law § 155.00(5), because defendant and his employer allegedly had equal possessory interests in the firm's checking account. However, the evidence established that the employer permitted defendant to be an authorized signer on the checking account for business purposes only; defendant was not granted any interest in the firm's funds (compare People v O'Brien, 102 Misc 2d 246 [Nassau Dist Ct 1979] [taking from joint bank account by one of the [*2]joint owners is not larceny]). Regardless of whether defendant and the employer had equal access to the account as far as the bank was concerned, the employer's testimony made it clear that the employer's right of possession was, at the very least, greater than defendant's.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 2, 2012

CLERK