People v. McGovern

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Issue Before the Court: Whether the sentencing court properly imposed consecutive sentences for third-degree grand larceny and second-degree forgery.

Factual Background: McGovern arranged for the delivery of tires posing as the owner, relative, or employee of a Western NY car dealership empire. When the delivery driver arrived at the dealership, McGovern accepted the delivery onto his trailer, and then falsely signed an invoice for the tires.

McGovern was convicted after trial of third-degree grand larceny (Penal Law § 155.35(1)) under a false pretenses theory and second-degree forgery (Penal Law § 170.10(1)). The court instructed the jury as follows:

Grand Larceny

Forgery

“[A] person is guilty of grand larceny in the third degree when that person steals property and when the value of the property exceeds three thousand dollars. A person steals property and commits larceny when, with the intent to deprive another of property or to appropriate the same to himself, such person wrongfully takes, obtains or withholds such property from an owner of that property.”

“[a] person wrongfully takes, obtains or withholds property from an owner when that person makes a false representation of a past and existing fact while aware that such representation is false and obtains possession to the property as a result of the owner’s reliance upon such representation.”

“[A] person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, which is or purports to be or which is calculated to become or to represent, if completed, an instrument which evidenced and created a legal right.”

The court imposed consecutive 3.5-to-7-year terms on each charge.

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Held: The consecutive sentences were permissible under Penal § 70.25(2).

Under Penal Law § 70.25(2), sentences imposed for multiple offenses may not run consecutively where:

  1. A single act constitutes two offenses, or
  2. A single act constitutes one of the offenses and a material element of the other.

Under the first prong, as charged to the jury, McGovern accomplished the taking once the driver loaded the tires onto his trailer, before McGovern falsely signed the invoice. McGovern had made several false statements before he received the tires.

Under the second prong—which requires looking to the statutory definition of the crimes at issue to discern whether the actus reus elements overlap—forgery was not a necessary element of larceny by false pretenses. Forgery is not the exclusive means to accomplish a larceny by false pretenses. This form of larceny may be accomplished by any number of other false representations that induce an owner to part with property.

CAL Observes: This decision presents a straightforward illustration of what can be a difficult legal issue to brief as well as discuss with clients in risk discussions.