
    The People of the State of New York, Plaintiff, v Peter Bushman, Defendant.
    County Court, Monroe County,
    December 17, 1985
    APPEARANCES OF COUNSEL
    
      Shirley A. Gorman, Assistant Public Defender, for defendant. Howard R. Relin, District Attorney (Robert J. Kammer of counsel), for plaintiff.
   OPINION OF THE COURT

David D. Egan, J.

The defendant has moved for dismissal of this indictment on the grounds that the charges contained therein are not joinable as required by CPL 200.20.

The People, defense and the court are unable to locate prior decisions on point to offer guidance in the determination of this motion.

The first count of this indictment charges the defendant under Penal Law article 155 (larceny) with the crime of grand larceny in the third degree, in violation of Penal Law § 155.30 (1), a class E felony, to wit, stealing property (food and cash) worth more than $250, on or between December 16, 1984 and December 26, 1984.

The second and third counts charge the defendant under Penal Law article 190 (other frauds) with the crime of issuing a bad check in violation of Penal Law § 190.05 (1), a class B misdemeanor on March 6, 1985 and on June 27,1985.

CPL 200.20 (1) provides that, "An indictment must charge at least one crime and may, in addition, charge in separate counts one or more other offenses, including petty offenses, provided that all such offenses are joinable pursuant to the principles prescribed in subdivision two.”

CPL 200.20 (2) (c) provides that two offenses are "joinable” when: "Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law”.

The People concede that the charges herein are not joinable under CPL 200.20 (2) (a), (b) or (d) nor under CPL 200.20 (3) and rely on CPL 200.20 (2) (c).

The issue before the court then is whether or not the alleged larceny offense and bad check offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law.

Larceny being covered by Penal Law article 155 is not defined by the same or similar statutory provisions which apply to issuing a bad check which is covered by article 190 (other frauds).

The court has noted that larceny is defined by Penal Law § 155.05 which provides that larceny may be committed by "committing the crime of issuing a bad check, as defined in section 190.05”. (See, Penal Law § 155.05 [1], [2] [c].) The reference in Penal Law § 155.05 to Penal Law § 190.05 is not of sufficient scope to bring the larceny and bad check definitions within the same or similar statutory provisions. The elements of each crime are vastly divergent and found in dissimilar provisions of the Penal Law. (See, 2 CJI [NY] PL 155.30 [PL 155.05 (2) (a)] at 805-812; 3 CJI [NY] PL 190.05 [1] at 1278-1287.)

The indictment herein failing to conform to CPL 200.20 is defective and must be dismissed. (CPL 210.20 [1] [a]; 210.25 [1]; 210.45 [4].)

Accordingly, indictment number 677, filed September 13, 1985, against the defendant is dismissed.  