People v. Farrar

• Decision Date: 15 August 1983
• Parties: The PEOPLE of the State of New York, v. Abe FARRAR, Defendant.
• Court: New York City Court

Page 221

466 N.Y.S.2d 221

120 Misc.2d 464

The PEOPLE of the State of New York, v. Abe FARRAR, Defendant.

Criminal Court of the City of New York New York County, Part AP5.

Aug. 15, 1983.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, for the People (Joel J. Seidemann and Tony D. Tague, New York City, of counsel).

Susan Hendricks, Legal Aid Soc., New York City, for defendant.

IRVING LANG, Judge:

Defendant's two-pronged attack on the information charging him with "fraudulent accosting" focuses on the words "trick" and

"swindle," which are operative elements of the statute but are not defined in Penal Law § 165.30 or interpreted by any cases.

THE FACTS

The defendant is charged with fraudulent accosting (Penal Law § 165.30) in that with intent to defraud, by means of trick or swindle, he offered to sell to passersby "14 karat" gold chains, when in fact, the chains were not 14 karat gold.

THE CONTENTIONS

The defendant's first claim is that the conduct alleged, offering to sell 14 karat gold chains which are not in fact gold, does not fall within the ambit of prohibitive conduct under New York's fraudulent accosting statute. The defendant asserts that the statute is solely directed at confidence games and that the conduct alleged does not constitute a confidence game.

In addition, the defendant maintains that the statute is void for vagueness in that the terms "trick" and "swindle" are so vague and indefinite that the statute is constitutionally defective.

The District Attorney, on the other hand, supports the constitutionality of the statute. In addition, he asserts that the law is not solely aimed at confidence games, but that in any event, the defendant's actions constitute a confidence game within the meaning of the legislation.

In order to examine these conflicting views it is necessary to analyze the statute and its history.

The current statute provides as follows:

Penal Law § 165.30 Fraudulent accosting

1. A person is guilty of fraudulent accosting when he accosts a person in a public place with intent to defraud him of money or other property by means of a trick, swindle or confidence game.

2. A person who, either at the time he accosts another in a public place or at some subsequent time or at some other place, makes statements to him or engages in conduct with respect to him of a kind commonly made or performed in the perpetration of a known type of confidence game is presumed to intend to defraud such person of money or other property.

Fraudulent accosting is a class A misdemeanor.

The current law was passed in 1971 after the predecessor statute was declared unconstitutional by the Appellate Term in People v. Harris, 64 Misc.2d 510, 315 N.Y.S.2d 66. The previous statute provided:

§ 165.30

A person is guilty of fraudulent accosting when he accosts a person in a public place and, either at that time and place or subsequently in any place, he makes statements to such person of a sort commonly made or used in the perpetration of a known type of confidence game.

As is apparent, the 1971 amendment changed the law in three significant respects. First, the new law added an "intent to defraud" element to the statute. Second, a presumption was substituted for absolute liability relating to statements commonly made in the perpetration of a known type of confidence game. These two changes were clearly made to overcome the court's decision in Harris, supra. Third, the statute added "trick" and "swindle" to its prohibitions.

The defendant contends that section 165.30 was "aimed at confidence men operating in public places." (Citing Arnold D. Hechtman, Practice Commentaries to New York Penal Law § 165.30 [McKinney's].) The insertion of the words "trick" and "swindle" to the statute, according to the defendant's brief, "was added to clarify and explain the sometimes elusive 'confidence game.' " To support that contention defendant cites a number of cases which refer to a confidence game as a swindle or trick. People v. Reid, 95 Misc.2d 822, 408 N.Y.S.2d 170; People v. Brown, 81 Misc.2d 149, 365 N.Y.S.2d 149; People v. Williams, 93 Misc.2d 726, 402 N.Y.S.2d 310. (See, also, 2 Criminal Jury Instructions, New York, p 968, 1st ed.) A confidence game is defined as the "obtaining of money or property by means of some trick, device or swindling operation in which advantage is taken of the confidence which the victim reposes in the swindler" (citing this court's opinion in Williams, supra, and Black's Law Dictionary). Since his actions and declarations do not constitute a known confidence game within the meaning of the statute, the defendant asserts that the complaint should be dismissed.

The District Attorney counters by claiming that the terms trick and swindle are discrete and do not define confidence game. In any event, the People claim that the defendant's actions constitute a confidence game within the meaning of the statute. He points out that the elements of a confidence game are (1) an intentional false representation to the victim as to some present fact, (2) knowing it to be false, (3) with intent that the victim rely on the representation, (4) the representation being made to obtain the victim's confidence and thereafter his money and property, (5) which confidence is then abused by the defendant. (United States v. Brown, 309 A.2d 256, 257 [D.C.App.]; People v. Williams, supra.) The District Attorney maintains that the defendant's false representation that the jewelry was gold and made to obtain the victim's confidence and thereafter his money, and therefore was a confidence game within the prohibition of the statute.

The District Attorney's reasoning is erroneous, constituting what in logic is called a conversion (i.e., all whales are mammals, therefore all mammals are whales).

"While every confidence game necessarily involves false pretenses or ruses, not every false pretense constitutes a confidence game (Clark v. State, 53 Ariz. 416, 89 P.2d 1077). The gist of the crime is the obtaining of the confidence of the victim by some false representation or device (People v. Friedlander, 328 Ill. 35, 159 N.E. 187; People v. Epstein, 338 Ill. 631, 170 N.E. 678)." (People v. Williams, supra 93 Misc.2d at 732, 402 N.Y.S.2d 149.)

In the instant case, the mere representation by the defendant that the chains were gold does not make the scheme a confidence game. In order to have made the scheme a confidence game, the defendant, for example, might have engaged in a ruse to convince a victim that he was an employee of Cartier of Tiffany thereby engendering confidence in the victim with respect to access to and genuineness of the chains.

I hold therefore that the defendant's actions do not constitute a confidence game.

The District Attorney is on firmer ground when he argues that the words "trick" and "swindle" are separate from the term "confidence game."

Here the defendant is also guilty of a logical conversion. While every confidence game can be denominated a swindle, not every swindle or trick is a confidence game. (Interestingly, in England "confidence game" is called "confidence trick".) Thus a person who palms the court card in three card monte, or who substitutes loaded dice for real dice is guilty of a trick or swindle but clearly is not guilty of a confidence game, since no confidence is reposed in him by the victim.

Section 165.30 is derived from section 722.6 of the old Penal Law (see Hechtman, supra ). That section provided inter alia that a person is guilty of disorderly conduct when he "accosts any person for the purpose of obtaining money or other property by any trick, artifice, swindle, confidence game, or in any other illegal manner" (ch. 642, L.1952 [emphasis supplied] ).

When the revised Penal Law took effect the Legislature only referred to confidence games. But the 1971 amendment restored the words trick and swindle to the statute.

The plain language of the statute specifically prohibits people from accosting others in public places with intent to defraud by trick, swindle or confidence game (emphasis supplied). It is obvious that in using the word "or " the Legislature was spelling out different means of violating the statute rather than defining the words "confidence game." First, these words add nothing to the definition of confidence games, being broader rather than limiting in scope. Second, Penal Law § 5.00 which governs construction of criminal statutes, "does not permit an essential part of a statute to be ignored in a particular case" (People v. Ebuzome, 107 Misc.2d 464, 466, 435 N.Y.S.2d 243). To read section 165.30 in a manner which excludes "tricks" and "swindles" would be to ignore an essential part of the statute. Those words were not in the previous section 165.30. "It is not to be supposed that the Legislature will deliberately place words in a statute which are intended to serve no purpose." (Ebuzome, supra at 465, 435 N.Y.S.2d 243.)

I hold therefore that while the defendant's actions do not constitute a confidence game within the meaning of the law, they could fall within the purview of the phrase "trick or swindle," provided that those words are not so vague and indefinite as to violate constitutional standards.

Defendant attacks the constitutionality of the statute on the grounds that the words "trick" and "swindle" fail to satisfy the notice requirements of the State and Federal Constitutions and it is thus unconstitutionally vague. The Penal Law does not define these terms. There is no legislative history addressing their meaning. Nor has any court in this state construed these terms.

Due process requires that a statute be definite. This requirement "is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not...