Opinion
May 11, 1990
Appeal from the Cattaraugus County Court, Kelly, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of 36 counts of a 37-count indictment, defendant argues that the proof with respect to certain counts was insufficient to establish guilt to a moral certainty. We disagree. That standard applies only with respect to the counts charging him with larceny by false promise (Penal Law § 155.05 [d]). The fact that defendant did not intend to perform the work at the time he entered into the contracts was established by proof of his repeated failure to refund money or to complete contracts (see, People v. De Muirier, 106 A.D.2d 266, 267); proof of "obviously false statements" made by him, and his failure to return phone calls made by the complainants (People v. Rolchigo, 33 A.D.2d 1060, 1061, affd 28 N.Y.2d 644); proof of similar transactions involving a common scheme or plan (see, People v Coloney, 98 A.D.2d 969); and, importantly, proof that defendant left the State for North Carolina, where he was arrested (see, People v. Luongo, 47 N.Y.2d 418, 429-430; see also, People v Hamilton, 155 A.D.2d 978; cf., People v. Churchill, 47 N.Y.2d 151; People v. Campobello, 154 A.D.2d 911; People v. Reynolds, 147 A.D.2d 961, lv denied 74 N.Y.2d 746; People v. Ferry, 142 A.D.2d 994, lv denied 73 N.Y.2d 891).
We have examined defendant's remaining contentions and find them lacking in merit.