People v. Enfeld
| Decision Date | 30 May 1987 |
| Citation | 518 N.Y.S.2d 536,136 Misc.2d 252 |
| Parties | The PEOPLE of the State of New York, v. Susan ENFELD, Defendant. |
| Court | New York Supreme Court |
Mordkofsky & Goldstein by Norman J. Mordkofsky, New York City, for defendant.
Robert Morgenthau, Dist. Atty. (Miroslav Lovric, New York City, of counsel), for the People.
Defendant is charged in a 27 count indictment with the unlicensed practice of law (Judiciary Law 478, 485), grand larceny in the second degree, and other related offenses. The People allege, inter alia, that defendant has on numerous occasions fraudulently represented herself as a duly licensed attorney, and has accepted legal fees for representing individuals in landlord-tenant court, as well as for other work. Defendant moves to dismiss the indictment on a number of grounds.
Judiciary Law 478 makes it unlawful to practice law or hold oneself out to the public as an attorney without first being licensed and admitted to practice by the State of New York. Defendant first contends that the District Attorney is not empowered to prosecute violations of this section in light of the wording of Judiciary Law 476-a which states, in relevant part, that:
The attorney-general may maintain an action upon his own information or upon the complaint of a private person or of a bar association organized and existing under the laws of this state against any person ... who commits any act or engages in any conduct prohibited by law as constituting the unlawful practice of the law.
I reject this argument. A reading of Judiciary Law 476-b makes clear that Sec. 476-a can be enforced by way of a civil action. In that case, it is the Attorney General or the New York State Bar Association, 476-a(2) who brings suit. But a civil action is not the exclusive mode of enforcement, Dacey v. New York County Lawyers' Assn., 290 F.Supp. 835 (S.D.N.Y.1968). An alternative remedy is provided by Judiciary Law 485 which makes criminal any violation of the provisions of sec. 478. That being the case, the District Attorney is authorized by County Law Sec. 700 to bring a criminal prosecution against anyone who practices law without a license.
Defendant next argues that she cannot be found guilty of counts 9, 17, 19, 21, 23 and 26 as a matter of law, and seeks dismissal of these counts on that basis. Each of these counts charges her with issuing a false certificate in violation of Penal Law 175.40 which provides that:
A person is guilty of issuing a false certificate when, being a public servant authorized by law to make or issue official certificates or other official written instruments, and with intent to defraud, deceive or injure another person, he issues such an instrument, or makes the same with intent that it be issued, knowing that it contains a false statement or information.
The theory of the People's case, as presented in the grand jury, is that the defendant, in representing her clients in Civil Court filed various petitions and notices of petition which Court personnel then numbered and permitted to be issued pursuant to the jurisdiction of the Clerk of the Court, whose official stamp and signature were affixed to the documents. The People admit that defendant is not herself a public servant, but claim that she may be found guilty of Sec. 175.40 based on principles of accessorial liability, and they cite People v. Brody, 298 N.Y. 352, 83 N.E. 676, in support of their position.
People v. Brody, supra, a seminal case on status crimes, stands for the proposition that when a statute limits those who can commit a crime to those of a certain status, (e.g. public officers) a person who lacks that status can nevertheless be found guilty of violating the statute where it is shown that she aided or abetted one who had the status to commit the crime. This principle, applicable, for example, in instances where a female aids a male in committing a rape of a third party, People v. Irving, 107 A.D.2d 944, 484 N.Y.S.2d 354 has been codified in Penal Law sections 20.00 and 20.05.
It is also true that in a non status crime situation one who, with guilty intent solicits a person to commit an offense may be guilty of the offense even though the solicitee lacks that intent and is unaware of the criminal nature of the conduct, People v. Sadacca, 128 Misc.2d 494, 489 N.Y.S.2d 824. These two principles cannot, however, be combined. If a statute limits those who are capable of committing a crime to those of a certain status, a person who lacks that status, regardless of her intent, is not liable as an accessory to one who possesses that status but acts innocently. The legislature, in enacting a statute which is limited in application to those of a certain position or status, seeks to prevent abuse of that position by the status holder. In aid of that objective, one who aids the status holder in committing a crime should be held liable as principal. Where, on the other hand, the status holder has no intention of violating the statute, the purpose behind the law is not served by prosecuting the non status holder. In the instant case, the public servant in question acted in good faith and with innocent intention in possessing and issuing defendant's documents, it is impossible, therefore, for accessorial liability to attach to defendant. Counts 9, 17, 19, 21, 23 and 26 are, accordingly, dismissed.
Defendant also challenges...
To continue reading
Request your trial
-
People v. Vanguard Meter Service, Inc.
...to the falsity of the instruments filed could testify only indirectly as to falsity. Nor is this case analogous to People v. Enfeld, 136 Misc.2d 252, 518 N.Y.S.2d 536 (1987), in which the conviction, for offering a false instrument for filing, of an unlicensed attorney who filed court paper......
-
People v. Romero
...section 476-a, without discussion, to a civil action (Lawrence v. Houston, 172 A.D.2d 923, 924, 567 N.Y.S.2d 962; People v. Enfeld, 136 Misc.2d 252, 253, 518 N.Y.S.2d 536). Although Judiciary Law § 485 makes the unlawful practice of law, as defined by Judiciary Law § 478, a misdemeanor, thi......
-
People v. Romero
...72 N.Y.2d 701, 706, 536 N.Y.S.2d 406, 533 N.E.2d 245; Lawrence v. Houston, 172 A.D.2d 923, 924, 567 N.Y.S.2d 962; People v. Enfeld, 136 Misc.2d 252, 518 N.Y.S.2d 536), we nevertheless conclude that the Attorney-General was authorized to prosecute the subject charges under Executive Law § 63......
-
§ 30.03 ACCOMPLICE LIABILITY: COMMON LAW TERMINOLOGY
...474 N.E.2d 567, 577 (N.Y. 1984) (a woman may be convicted as an accessory in the rape of another woman).[28] . E.g., People v. Enfeld, 518 N.Y.S.2d 536, 537-38 (Sup. Ct. 1987) (E, a private party, fraudulently induced X, a public servant, to issue a false certificate; due to lack of mens re......
-
§ 30.03 Accomplice Liability: Common Law Terminology
...474 N.E.2d 567, 577 (N.Y. 1984) (a woman may be convicted as an accessory in the rape of another woman). [28] E.g., People v. Enfeld, 518 N.Y.S.2d 536, 537-38 (Sup. Ct. 1987) (E, a private party, fraudulently induced X, a public servant, to issue a false certificate; due to lack of mens rea......
-
TABLE OF CASES
...5 S. Ct. 2001, 192 L. Ed. 2d 1 (2015), 140 Encarnacion-Ruiz, United States v., 787 F.3d 581 (1st Cir. 2015), 452 Enfeld, People v., 518 N.Y.S.2d 536 (Sup. Ct. 1987), 440 Enmund v. Florida, 458 U.S. 782, 490 Erickson, People v., 57 Cal. App. 4th 1391 (Ct. App. 1997), 231, 235 Erickstad, Stat......