People v. Lobel

Tlie indictment upon which rests the judgment of conviction against each of the two defendants-appellants, originally contained 479 counts which charged the appellants and three other defendants with grand larceny first degree and forgery second degree. The indictment also charged that the acts and transactions alleged in the several counts were “ connected together and constitute part of a common plan and scheme.” Prior to the trial certain counts charging forgeries and larcenies were dismissed on motion hy reason of lack of jurisdiction and insufficiency of evidence before the grand jury; other counts were severed on motion by the district attorney. During the trial all counts charging forgery were dismissed upon the ground that the alleged forgeries were not committed within the jurisdiction of the County Court of Kings County. Of the remaining charges the trial judge submitted to the jury seventy-six counts which charged the defendant Lobel with grand larceny first degree, involving his participation during the year beginning October 18, 1945, in the taking from Mergenthaler Linotype Company — hereinafter referred to as Mergenthaler — of seventy-six checks in amounts totaling more than $400,000. The jury found Lobel guilty as charged in each of the seventy-six counts submitted for its consideration. As against the defendant Cohen the jury was permitted to consider fifty-six counts charging grand larceny first degree upon which he was found guilty under forty-one counts involving his participation in taking from Mergen-thaler forty-one checks in amounts totaling in excess of $152,000.

At the Appellate Division the judgment convicting the defendant Lobel was affirmed unanimously; the judgment convicting the defendant Cohen was affirmed, two justices dissenting and voting to reverse on the law and to dismiss the indictment upon the ground that the specific crimes submitted to the jury were not proved beyond a reasonable doubt. ( 273 App. Div. 978 .) The appeal hy the defendant Lobel is hy permission of a member of this court; the appeal hy the defendant Cohen is hy permission of a justice of the Appellate Division.

It was at this point that Lobel sought the aid of the appellant Cohen to assist him in opening a bank account under an assumed name. Such account — in the name of ‘ ‘ Robert A. Burton ’ ’ — was opened at the Modern Industrial Bank where Cohen introduced Lobel. ■ •

To establish the appellant Cohen’s complicity in the larcenies the prosecution introduced evidence to prove that acts by Cohen aided Lobel in reducing the stolen checks to cash. To that end

There were denials by the appellants Lobel and Cohen that they were involved in cashing stolen checks. Lobel testified that he was “ just a messenger boy ” for Nickel and that, believing the Mergenthaler checks upon which he secured cash were connected with “ black market ” transactions, he was paid 5% for cashing them. Cohen denied knowledge of any of the

We thus reach a consideration of the point of law, chiefly stressed by each appellant, that the trial court erred in allowing proof by the prosecution of false and fraudulent representation and pretense.

The larceny counts set forth in the indictment, of which the tenth count is typical, charge the defendants as follows:

“ TENTH COUNT

“ The GteaNd Juet op the Coukty op KiNgs, by this indictment, accuse the defendants, W. Arthur Nickel, Julius Lobel, alias Jimmy Collins, alias John B. Clifton, alias Alfred 0. Schumacher,. alias Robert Bell, alias George Weber, Isidore Rapoport and Irving Cohen, of the crime of GraND LarceNY m the First Degree, committed as follows:—

“ The defendants, W. Arthur Nickel, Julius Lobel, alias Jimmy Collins, alias John B. Clifton, alias Alfred 0. Schu-

The prefatory declaration of legislative policy found in the first section of chapter 732 of the Laws of 1942 — which statute repealed section 1290 of the Penal Law, and added two new sections thereafter to be known as sections 1290 and 1290-a — states the purpose of that enactment to have been to avoid confusion and injustice and to abolish the distinctions which had theretofore “ differentiated one sort of theft from another ”. By the new section 1290, the Legislature, after defining larceny as a single crime, added the following provisions:

“ Hereafter it shall be immaterial in, and no defense to, a prosecution for larceny that: 1. The accused obtained possession of, or title to, such property with the consent of the person from whom he obtained it, provided he induced such consent by a false or fraudulent representation, pretense, token, or writing; or

‘ ‘ 2. The accused in the first instance obtained possession of, or title to, such property lawfully, provided he subsequently

“ 3. The person from whom the accused obtained such property intended to part with title to, as well as possession of,, such property, or with possession as well as title; or

“ 4. The purpose for which the owner was induced to part with possession of such property was immoral or unworthy.”

After making impotent as defense measures the confusing distinctions already mentioned which prompted the 1942 legislation, the Legislature inserted the new section 1290-a which provides :

“ § 1290-a. PleadiNG AND PROOF. In any prosecution for larceny it shall be sufficient if: 1. The indictment or information charges that the accused, with the intent to deprive or defraud another of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of some person other than the true owner, stole any property of any of the kinds mentioned in section twelve hundred ninety of this article. If, however, the theft was effected Toy means of any false or fraudulent representation or pretense, evidence thereof may not he received at the trial unless the indictment or information alleges such means; hut as long as one of the false or fraudulent representations or pretenses alleged he proven, any other related representation or pretense, though not alleged, may he given in evidence.

“ 2. The indictment or information is supported by proof of the commission by the accused of any one of the acts that constitute larceny as defined in this article.” (Italics supplied.)

Relying on the italicized portion of the statute last quoted above, the appellants contend that the thefts upon which the indictment before us is based were “ effected ” by means of false and fraudulent representation or pretense, and that therefore — false pretense not being charged in the indictment — the evidence given by Nickel and the Mergenthaler officers descriptive of certain false pretenses was erroneously received in evidence.

The district attorney does not dispute that a false invoice is a false representation. Nor is it disputed that false invoices were used to induce Mergenthaler officers to sign the checks upon which the named payee-creditors were fictitious. Arguing for

The requirement found in section 1290-a that, where a larceny is “ effected ” by false pretense, such false pretense must be alleged, is not new. It had previously been required, in charging larceny by false pretense, to allege in the indictment at least one of the misrepresentations (People v. Peckens, 153 N. Y. 576 , 588). The word “ effected ”, as defined by Webster’s New International Dictionary, is “To produce; to do; to make; to bring to pass; to execute; enforce; accomplish.” It would, •therefore, appear in the present case that the false invoices did not “produce ”, nor did they “ bring to pass ”, nor “ accom

We do not find in the'language of section 1290-a an indication that the Legislature intended that every false representation occurring in the course of dealings which led up a larceny need be pleaded, regardless of the fact that prior false representations served only to produce the item of property stolen thereafter. It is only where the theft itself is “ effected ” by false pretense that false pretense must be pleaded in the indictment to make evidence thereof admissible at the trial. As we read subdivision 1 of section 1290 of the Penal Law, a larceny effected by false pretense is not proven unless it appears that the owner of property, relying upon a false representation, voluntarily gives the thief possession or title to that property. If, as in the present case, the thief gains possession of title to the property without the owner’s consent, it cannot be said — within the language of section 1290-a — that the theft was effected ’ ’ by false pretense, despite the fact that prior to the actual theft false representations were made which produced the property stolen. Stated otherwise —■ to exclude evidence of a false representation which preceded or led up to a larceny, it must appear that the owner, relying upon the misrepresentation, voluntarily parted with possession of or title to the property. As already indicated the record at hand contains no evidence of any act of Mergen-thaler by which it voluntarily gave to Nickel or to either appellant the checks here involved for such use as they might choose to make of them. None of the checks were payable to bearer; all of them were payable to creditors of whom many were fictitious and not known to the Mergenthaler signatory officers. It follows that title to none of the checks passed from Mergen-thaler by the larcenous act by which Nickel took possession of them, which act was certainly not within the scope of his duties. (See Negotiable Instruments Law, § 28, subd. 3; City of New York v. Bronx County Trust Co., 261 N. Y. 64 .)

Nor do we agree with the appellants’ position that the trial court erred in receiving evidence of false and fraudulent representation or pretense over objections that such evidence was incompetent, irrelevant and immaterial. We have seen that the indictment charged-that the acts and transactions alleged in the several counts are ‘ ‘ connected together and constitute part of a

The appellants contend that the absence of an allegation in the indictment of fraudulent representation or pretense led them to enter upon the trial without knowledge that they would be called upon to defend themselves against charges of fraud and false pretense. ' It appears of record that after the trial had commenced and at a time when counsel for each appellant was in court, the trial judge stated in connection with his rulings upon certain motions — “ All of the counts with respect to the forging and uttering of the so-called fake invoices will be dismissed on the ground that the alleged crimes were not committed within the jurisdiction of this court. ’ ’ Although the record submitted to us does not contain the forgery counts thus dismissed,

The appellants also claim that they were denied due process of law under the Fourteenth Amendment of the Federal Constitution, the asserted ground being that they were tried by jurors as to whom one appellant or the other had interposed a peremptory challenge. It appears from the record that where both appellants did not join in a peremptory challenge to a juror, the trial court ruled that the juror should be sworn. We think such ruling by the trial court was correct. Section 360 of the Code of Criminal Procedure provides — ‘ ‘ When several defendants are tried together they cannot sever their challenges, but must join therein.” Interpreting that statute this court has had occasion to say “ The matter of peremptory challenges rests entirely with the Legislature. (People v. Cosmo, 205 N. Y. 91 , 95, 97; People v. Dunn, 157 N. Y. 528 , v. Missouri, 120 U. S. 68 , 69, 70.) If this were a question of challenges for cause, it would be another matter. The Legislature has no such discretionary power as to challenges for cause. * * * The defendants under this section must unite in their challenges ” (People v. Doran, 246 N. Y. 409 , 426, 427).

In addition to matters to which reference is made above we have given consideration to evidentiary rulings and conduct by the trial court which the appellants challenge as prejudicial to their legal rights and to which the briefs of counsel direct our attention.

(diss’enting as to defendant Cohen). I concur with Judge Lewis’ opinion except that, as to appellant Cohenr I vote to reverse the conviction, and for a new trial. All the testimony as to Cohen’s connection with these larcenies is circumstantial and equivocal only, not direct. That testimony, since it does not “ exclude to a moral certainty every hypothesis except that of guilt ” and is “ ‘ consistent with either the hypothesis of innocence or the hypothesis of guilt ’ ”, is insufficient basis for a conviction (People v. Weiss, 290 N. Y. 160 , 163, and cases cited). Guilt in a criminal case must be proven beyond a reasonable doubt and so we are forbidden to apply here the rule in civil cases (see Dillon v. Rockaway Beach Hospital, 284 N. Y. 176 , 179) that a judgment may he sustained if we find in the record any evidence which supports the inference on which the decision is based.

(dissenting). I very much fear that this decision of the court may reintroduce some of the confusing uncertainties which the Legislature sought to eliminate from larceny prosecutions some six years ago. Consequently — quite apart from doubts which I entertain as to the sufficiency of the proof establishing the guilt of the defendant Cohen — I cannot concur in tfie affirmance of the conviction of either appellant, for the reason that the mass of evidence relating to false representations was received at the trial in violation of a controlling statute.

Section 1290 of the Penal Law, as it existed before 1942, defined not a single crime of larceny but three separate and distinct offenses, known as larceny, embezzlement and obtaining property by false pretenses. Each had to be prosecuted by a different indictment or by a separate count of the- same indictment, and a vast amount of confusion accompanied the attempt to preserve the identity of each. Indeed, so subtle and nebulous were the distinctions drawn bétween them that not infrequently one categorically proved a thief was able to escape the consequences of his crime because the prosecutor charged the wrong sort of larceny or the trial judge misconceived the type of theft established. (See, e.g., People v. Noblett, 244 N. Y. 355 ; People

To rid the law of these perplexing refinements and distinctions, the Legislature in 1942 redefined the crime of larceny by completely rewriting section 1290 of the Penal Law (L. 1942, ch. 732). In its preface, the amendatory act declared that it was “ the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the distinctions which have hitherto differentiated one sort of theft from another ”. By explicitly rendering “ immaterial ” the concept of “ possession ” and “ title ” in prosecutions for larceny, the Legis-laturé put an end to the legal mumbo-jumbo and to the “ very nice ” distinctions (Loomis v. People, 67 N. Y. 322 , 329) that had previously plagued prosecutor and court and hindered the effective administration of justice.

The Legislature also added section 1290-a — to regulate the manner of pleading and proof — and it is with that provision that we are concerned. A larceny indictment, it is recited, “ shall be sufficient ” as long as it charges that the accused, possessing the requisite intent, “ stole ” property. If, however, it is further specified, ‘ ‘ the theft was effected by means of any false or fraudulent representation or pretense, evidence thereof may not be received at the trial unless the indictment ⅝ * * alleges such means ”.

In the case before us, the indictment, containing 479 separate counts, charged the defendants with the commission of a large number of thefts and forgeries, assertedly connected together and constituting part of a common plan and scheme. The indictment did not contain any allegation of false representation or pretense. Nevertheless, evidence of false representations — which, the district attorney in his opening declared, “ duped ” the victim’s officers — was concededly, and over objection, received at the trial. The question for determination, then, is whether or no the thefts charged against the defendants were “ effected ” by means of those false representations so as to have required their allegation in the indictment.

Little purpose is to be served by treatment of the evidence. It is sufficient merely to note that the proof indicated, first, that defendants evolved a fairly elaborate scheme which called

It may well be that none of the thefts was consummated until one of the defendants actually placed the fraudulently-inspired check into his pocket; it may well be that each of those thefts was of the type previously denominated a common-law larceny rather than larceny by false pretenses. But to attach operative effect to either one or the'other of those circumstances, to insist that the false representations did not “ effect ” the crime because they did not immediately induce the victim to part “ voluntarily ” with title to the property, is but to resurrect the ancient confusion: it is merely another way of saying that the theft committed was old common-law larceny rather than larceny by false pretenses. The net effect is to disregard the clearly expressed legislative design and policy that the distinctions between common-law larceny and false pretenses be eliminated and abolished. In other words, if decision as to whether or not false representations need be alleged, is made to depend upon the pre-1942 type of larceny committed, it is evident, I believe, that we would be perpetuating the very hairsplitting distinction between larceny and false pretenses that the new law sought to do away with. It is, of course, no answer

It cannot he too often repeated or too strongly emphasized that, in enacting the new larceny law, the Legislature declared its aim to he the elimination and abolition of “ the distinctions which have hitherto differentiated one sort of theft from another ” (L. 1942, ch. 732). Obviously, after providing for their abolition, the Legislature did not mean to continue the distinctions in effect for the purpose of determining whether false representations had to be pleaded in the indictment. That enactment — and the redefinition of the crime of larceny — is as significant as any step toward a more rational criminal procedure. Judges should be alert not to detract from its significance or impair its value. The courts may effectuate and carry out the legislative purpose and thereby assure the nonappearance of technicality and confusion, simply by making certain that those distinctions legislatively eliminated remain eliminated and are not imported anew into larceny prosecutions.

A consideration of section 1290-a of the Penal Law confirms my conclusion. That section requires the allegation of false or fraudulent representations if they aided in the consummation of the theft or facilitated its commission, regardless of what the offense may previously have been called. Whether the People could have established the offenses charged in the indictment without introducing evidence of false representation — whether the case would have been legally sufficient or factually persuasive without such proof — is beside the point. Important and consequential is the circumstance that the statute unequivocally provides that evidence of false representations “ may not be received at the trial unless the indictment # * ⅜ alleges ’ ’ them. And, as indicated, the necessity for such allegation is not limited to thefts previously prosecuted under the label, obtaining property by false pretenses; in terms, the statute encompasses every case in which false representations were utilized to “ effect ” or bring about the theft. Consequently, if the People elect to prove that the thieves made use of false representations to induce certain conduct on the part of their victim, and those representations constituted an integral part of the scheme devised to steal the property — as is the case here — the

In my view, therefore, there should bé a reversal. The People should determine whether to retry the case on the present indictment — and desist from offering proof of false representation — or to seek a new indictment alleging the essential false representation and pretense.

I would reverse the judgments and order a new trial.

Conwat, Thacher and Dye, JJ., concur with Lewis, J.; Desmond, J., concurs in separate opinion as to defendant Lobel but dissents and votes to grant a new trial as to defendant Cohen; Ftjld, J., dissents as to both defendants in an opinion in which Lotjghran, Ch, J., concurs.

Judgments affirmed. [See 298 N. Y. 920 .]