Relates to larceny

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.