People v. Firestone
| Decision Date | 25 June 1985 |
| Citation | 111 A.D.2d 696,490 N.Y.S.2d 513 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Richard FIRESTONE, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Milton DORISON, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Peter GETTINGER, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Raymond MIRRER, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Herman FRIEDMAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
D.J. Siewert, New York City, for State of N.Y.
B. Brafman, New York City, for defendant-appellant in No. 23541 T.E. Dwyer, Jr., R.J. Schulman, New York City, for defendant-appellant in No. 23542.
M.F. Armstrong, New York City, for defendant-appellant in No. 23543.
A. Doskow, New York City, for defendant-appellant in No. 23544.
R.E. Zuckerman, H. Putzel, New York City, for defendant-appellant in No. 23545.
Before SULLIVAN, J.P., and CARRO, FEIN, KASSAL and ROSENBERGER, JJ.
Judgments of the Supreme Court, New York County, rendered June 10, 1983, convicting defendants Firestone, Dorison and Gettinger of 12 counts of grand larceny in the second degree, 10 counts of offering a false instrument for filing in the first degree, one count of scheme to defraud in the first degree, one count each of conspiracy in the fifth degree and violation of General Business Law § 352-c(2) [Martin Act], sentencing Firestone to concurrent indeterminate terms, the longest of which is a sentence of from 2 1/3 to 7 years, and imposing upon him a fine of $2,050,000.00, sentencing Dorison to concurrent indeterminate terms, the longest of which is a sentence of from 2 to 6 years, and imposing upon him a fine of $2,030,000.00, and sentencing Gettinger to concurrent indeterminate terms, the longest of which is a sentence of from 1 to 3 years, are unanimously affirmed and these matters remitted to Supreme Court, New York County for further proceedings pursuant to C.P.L. § 460.50 (subd. 5).
Judgment of the Supreme Court, New York County, (B. Altman J. and a jury) rendered June 10, 1983, convicting defendant Mirrer of ten counts of offering a false instrument for filing in the first degree and one count each of conspiracy in the fifth degree and violation of the Martin Act, and sentencing him to concurrent terms, the longest of which is a sentence of 6 months imprisonment and 4 1/2 years probation, is unanimously affirmed and the matter remitted to Supreme Court, New York County for further proceedings pursuant to C.P.L. § 460.50 (subd. 5).
Judgment of the Supreme Court, New York County, (B. Altman J. and a jury) rendered June 10, 1983, convicting defendant Friedman of 12 counts of grand larceny in the second degree and one count each of conspiracy in the fifth degree, scheme to defraud in the first degree, and violation of the Martin Act and sentencing him to probation is unanimously affirmed and the matter remitted to Supreme Court, New York County for further proceedings pursuant to C.P.L. § 460.50 (subd. 5).
The five appellants herein were charged under one indictment with the crimes noted above stemming from the sale to the public of coal tax shelters which were invalid, because, as structured, there was no possibility of mining coal. In 1979 and 1980, through a company named International Venture Capital (IVC), the defendants sold limited partnerships, known as program in mining ventures. They falsely represented to investors that the programs would mine large amounts of coal, entitling the investors to substantial tax deductions, which were actually invalid.
Limited partnerships totalling some $8 million were sold to the public during this period. More than $2 million each was siphoned off from this amount and given to defendants Firestone and Dorison, the concealed promoters of these programs. In fact, of the $8 million provided by investors-limited partnerships, 95 percent went to IVC and various individuals, with less than 5 percent allocated as working capital with which to mine coal.
The evidence against each defendant was substantial and fully supports the verdicts rendered by the jury. Additionally, we find that the contentions raised by the defendants in their separate briefs lack merit. However, we take this opportunity to discuss an important issue presented by defendant Gettinger, the right of a defendant to waive a jury trial.
As early as eight months prior to trial defendant Gettinger advised the court of his intent to waive a jury. At this same time defendant had moved for a severance of his case from that of the other defendants. The motion to sever was denied on July 14, 1982. While Gettinger continued to make known his intent to waive a jury trial, he also made known his objection to the trial judge's suggestion of a simultaneous jury and bench trial. Eventually, Gettinger changed his mind and decided to consent to a simultaneous jury and bench trial.
On January 14, 1983, Gettinger submitted in open court a written waiver of his right to a jury trial, and the court permitted the other part...
To continue reading
Request your trial
-
People v. Miller
...requires that the request for waiver be denied: e.g., generally, impermissible procedural strategem; see, also, People v. Firestone, 111 A.D.2d 696, 490 N.Y.S.2d 513 (1985); People v. Diaz, 10 A.D.2d 80, 198 N.Y.S.2d 27 (1st Dept., 1960), aff'd. 8 N.Y.2d 1061, 207 N.Y.S.2d 278, 170 N.E.2d 4......
-
People v. Wallace
...the granting of a separate trial (see, e.g., People v. Imburgia, 134 Misc.2d 1057, 514 N.Y.S.2d 320, supra; cf., People v. Firestone, 111 A.D.2d 696, 490 N.Y.S.2d 513; People v. Diaz, 10 A.D.2d 80, 198 N.Y.S.2d 27, affd. 8 N.Y.2d 1061, 207 N.Y.S.2d 278, 170 N.E.2d 411; People v. Ahalt, 139 ......
-
People v. Halloran
...noted that the defendants had "falsely represented to investors that the programs would mine large amounts of coal...." (111 A.D.2d at 698, 490 N.Y.S.2d 513.) While the modern trend is certainly toward a broader reading of penal statutes, e.g., Penal Law § 5.00, the crime of larceny has his......
-
People v. Ahalt
...procedural advantage or that the defendant is not fully aware of the consequences of the choice he is making ( People v. Firestone, 111 A.D.2d 696, 490 N.Y.S.2d 513). Both grounds in the statute justifying denial of the defendant's demand for a non-jury trial were present here, and will be ......