BILL NUMBER:S7187

TITLE OF BILL:  An act to amend the penal law, in relation to larceny

PURPOSE:

To specify explicitly that in a prosecution for Larceny by false
promise, "partial performance of such promise does not, by itself,
preclude a reasonable jury from making such finding from all the facts
and circumstances."

SUMMARY OF PROVISIONS:

Section 1 amends paragraph (d) of subdivision 2 of § 155.05 of the
Penal Law to specify explicitly that in a prosecution for Larceny by
false promise, "partial performance of such promise does not, by
itself, preclude a reasonable jury from making such finding from all
the facts and circumstances."

Section 2 states that this act shall take effect immediately

JUSTIFICATION:

Elderly people are frequently the victims of home improvement scams
throughout New York State. In the typical scheme, a dishonest
contractor persuades his or her victim to make a full upfront payment;
              

after performing a minimal amount of the promised work, he or she
absconds with the victim's money.

Ambiguity in New York State Law has made it difficult to prosecute
these scams. In People v. Churchill, the defendant, a home improvement
contractor, entered into contracts with four different homeowners for
a variety of projects, and was paid for substantially more work than
he ultimately performed. He was convicted of Larceny on a false
promise theory, which requires a unique burden of proof in New York
law: exclusions to a moral certainty of every hypothesis except that
of the defendant's intention or belief that the promise would not be
performed." In Churchill, the Court of Appeals reversed the conviction
and dismissed the indictment, holding that from the evidence adduced
at trial, it was "impossible to conclude that the proof excludes to a
moral certainty every hypothesis except guilty intent."

Although Churchill appears simply to be a case where the evidence was
insufficient to sustain the charge, it has thrown a wrench into home
improvement scam prosecutions in some parts of the state. In one case,
the Appellate Division reversed a conviction for Larceny by false
promise because the "defendant took significant steps" to fulfill his
promises. In another, the Appellate Division reversed a contractor's
conviction for Larceny by false promise despite the fact that he had
"received deposits to build" two pole structures and "never built them
or refunded the down payments."

The Court of Appeals' seminal decision in People v. Norman, decided 16
years after Churchill, spelled out the legal standard applicable to
Larceny by false pretense and Larceny by false promise cases, holding
that for purposes of legal sufficiency, false promise cases should be
held to no greater or lesser standard than any other Larceny case.


Pointedly, and contrary to the standard of review applied in
Churchill, the Norman Court held that "Penal Law § 155.05(2)(d)'s
'moral certainty standard is not an appropriate criterion for
measuring the sufficiency of the People's proof." Unfortunately,
although Norman distinguished Churchill on its facts, the Court
neither overruled Churchill nor clarified that partial performance of
a promise, by itself, does not defeat an otherwise legally-sufficient
Larceny charge.

To eliminate the ambiguity in case law this bill would explicitly
codify that in a prosecution for Larceny by false promise, "partial
performance of such promise does not, by itself, preclude a reasonable
jury from making such finding from all the facts and circumstances."
This language would not alter general standards to such prosecutions,
nor change the standard of review. It would, however, clarify present
law and assist in combating a common fraud committed against elderly
New Yorkers.

LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE:

This act shall take effect immediately.