People v. Roe ( 1965 )

Per Curiam.

Appeal from a judgment of the County Court of Chenango County dated March 21, 1964, convicting the defendant of 40 counts of an indictment involving grand larceny first degree under a common scheme or plan, grand larceny second degree, petit larceny, misappropriation, injury to public records, forgery second degree and forgery third degree. The defendant was a special deputy in charge of the civil department in the Sheriff’s Department of Chenango County and as such he was responsible for moneys collected and to be deposited by said department. Following the discovery of a shortage in his deposits he was indicted on 52 counts. Ten of these (12, 35, 36, 37, 40, 41, 42, 43, 44 and 46) were dismissed by the court at the close of the People’s case. The jury acquitted him on two (14 and 26) of them and found him guilty on the other 40 counts. While the record leaves much to be desired in the manner in which the People’s case was presented, it is clear to us that there is ample evidence to support defendant’s conviction beyond a reasonable doubt on counts nos. 2, 3, 9, 10, 11, 22, 23, 24, 29, 30 and 45. We dismiss count no. 1 since we have otherwise individually disposed of the counts constituting the common scheme therein charged. We conclude, however, that the proof is insufficient to sustain the verdict of the jury as to counts nos. 4, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 25, 27, 28, 31, 32, 33, 34, 38, 39, 47, 48, 49, 50, 51 and 52. Judgment modified, on the law and the facts, by dismissing count no. 1, affirming the conviction on counts 2, 3, 9, 10, 11, 22, 23, 24, 29, 30 and 45 of the indictment and reversing the conviction on counts 4, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 25, 27, 28, 31, 32, 33, 34, 38, 39, 47, 48, 49, 50, 51 and 52 of the indictment. Appellant is sentenced on count 9 of the indictment to Attica State Prison for an indeterminate term, the minimum of which is not less than 5 years and the maximum not more than 10 years. Further, the appellant is sentenced on counts 2, 3, 10, 11, 22, 23 and 24 of the indictment to Attica State Prison for an indeterminate term, the minimum of which is not less than 2% years and the maximum not more than 5 years. This sentence is to run consecutively to the sentence under count 9, and this prison sentence is suspended contingent upon the appellant paying restitution to the probation officer of Chenango County in the sum of $50 per month commencing after he has served his first sentence above, until the sum of $2,157.11 has been repaid. Further, appellant is sentenced on counts 29, 30 and 45 of the indictment to six months in the Chenango County Jail, and this sentence is suspended, contingent on appellant making restitution above set forth under the sentence on counts 2, 3, 10, 11, 22, 23 and 24 of the indictment. Herlihy, J. P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.