People v. Gerard
| Decision Date | 06 June 1980 |
| Citation | 406 N.E.2d 1343,50 N.Y.2d 392,429 N.Y.S.2d 406 |
| Parties | , 406 N.E.2d 1343 The PEOPLE of the State of New York, Respondent, v. Mark J. GERARD, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The essential issue on this appeal is whether, in the context of a prosecution which relied on both direct and circumstantial evidence, the People presented sufficient proof to support a jury verdict declaring defendant Dr. Mark J. Gerard, a veterinarian specializing in the care of racehorses, guilty of two counts of "fraudulent entries and practices in contests of speed" arising out of a celebrated incident of "horse-switching" at Belmont Park Racetrack in 1977. 1 The statute under which he was indicted and convicted is subdivision 1 of section 12-a of chapter 440 of the Laws of 1926 (). 2
The record reveals a factual scenario that might have been authored jointly by an Alfred Hitchcock and a Damon Runyon. The alleged intrigue may be said to have hit the light of day after September 23, 1977, when a recently imported Uruguayan four-year-old bay thoroughbred entered in the ninth race at Belmont Park under the name Lebon won handily, finishing four lengths ahead of the pack. Having ended up as a miserable "also-ran" in its only previous North American outing, the horse in its second entry went to the post at pari-mutuel odds of 57 to 1. As one of the lucky bettors, defendant's share of the winner's pool was approximately $77,000.
These seemingly coincidental events soon were revealed to be anything but happenstance. Suspicions voiced by several Uruguayan racing fans led to the discovery that the winning horse in fact was not the "longshot" Lebon, a South American five year old that had not won a race since its legs began to fail, but a virtual look-alike, Cinzano, a highly touted prizewinner also brought in from Uruguay at the same time. As it turned out, Gerard had arranged for the purchase of both horses from their South American owners several months earlier, the $450 Lebon ostensibly for Jack Morgan, defendant's former trainer, and the $150,000 Cinzano for Joseph Taub, a client and investor in sports enterprises.
Shortly after the animals had arrived at John F. Kennedy International Airport in New York City, and immediately following their release from quarantine, they were stabled at Gerard's Muttontown, Long Island, horse farm, where, within no more than a day after their arrival, an unfortunate incident purportedly befell Cinzano. As it was being returned to its stall after exercise, it allegedly reared up, struck its head on a ceiling beam and fell, fracturing its skull and breaking a leg in the process. The report the defendant soon thereafter was to file with Taub's insurance company (which was to indemnify the owner for the loss in full) 3 claimed that the severity of the injuries necessitated the prompt destruction of the horse, which Gerard personally effected that very day.
According to the available proof, only Gerard and his estranged wife were eyewitnesses to the euthanasia. Thus, since the animal's carcass was disposed of without any loss of time, the couple appears to have been the only ones in a position to make a positive identification of the horse that was despatched. But Gerard never took the stand, and his wife was not called during the People's case. However, the defense did stipulate that of the two horses, the survivor, who remained in Gerard's care and control, was Cinzano.
Additional data of significance were proffered by the People in the form of testimony by Jack Morgan. Defendant's former trainer related that Lebon had been shipped in from South America and his name because State Racing and Wagering Board rules prohibited veterinarians from owning horses licensed to race in New York (see 9 NYCRR 4002.14). Actually, he told the jury, he was only the "paper owner", Gerard having paid the purchase price of the horse and the expenses of its care, completed its registration forms and participated in deciding when and where it was to race. Morgan further denied that he had any inkling that "Lebon" was Cinzano.
This as background, the defense theory, bearing in mind that knowledge was an essential element of the crime charged, was that Gerard himself was unaware of the imposture. To support this contention, it relied almost entirely on Mrs. Gerard, who was a horse fancier in her own right. Having been granted immunity by the Grand Jury, she maintained that it was she who, on her own initiative, had arranged the purchase of the two animals, had exchanged their identifying halters and, as the only eyewitness to the accident, had misled the defendant, whom she thought incapable of distinguishing Lebon from Cinzano, into believing that it was the latter that had been injured. Mrs. Gerard, who had a history of emotional disorders and was under a psychiatrist's care at the time of trial, explained further that she had devised the scheme because she had long been incensed over what she perceived to be the racing industry's indifference to the welfare of the animals around which it was built. To hear her tell it, her plan was to alleviate this condition by establishing a humane society for thoroughbreds. The money she hoped to win with a "ringer" was to provide her with the wherewithal to finance reforms.
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