People v. Glubo

• Citation: 174 N.Y.S.2d 159,5 A.D.2d 527
• Parties: The PEOPLE of The State of New York, Respondent, v. Aaron GLUBO, Seymour Exelberth, Robert B. Epstein and Atlantic Sewing Stores, Inc., Appellants.
• Decision Date: 21 April 1958
• Court: New York Supreme Court — Appellate Division

Page 159

174 N.Y.S.2d 159

5 A.D.2d 527

The PEOPLE of The State of New York, Respondent, v. Aaron GLUBO, Seymour Exelberth, Robert B. Epstein and Atlantic Sewing Stores, Inc., Appellants.

Supreme Court, Appellate Division, Second Department.

April 21, 1958.

Edward H. Levine and Vernon C. Rossner, New York City, for appellants.

Edward S. Silver, Dist. Atty., Brooklyn (Aaron E. Koota, New York City, of counsel), for respondent.

Before WENZEL, Acting P. J., and BELDOCK, MURPHY, UGHETTA and HALLINAN, JJ.

MURPHY, Justice.

The principal questions presented on this appeal are: (1) whether appellants violated section 421 of the Penal Law by making an untrue, deceptive or misleading assertion in advertisements which they caused to be broadcast over the facilities of a 'radio station', and (2) if appellants did, whether the Court of Special Sessions of the City of New York, Borough of Brooklyn, had jurisdiction to try them for the crime of conspiracy to violate said section, of which they were convicted.

Broadly stated, said section 421 declares it to be a misdemeanor to make any false, deceptive or misleading assertion, representation or statement of fact in any advertisement, over a radio station, offering merchandise for sale to the public. More specifically, the section provides that: 'Any person * * * who, with intent to sell or in any wise dispose of merchandise * * * or anything offered by such person * * *, directly or indirectly, to the public for sale * * *, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto * * *, makes, publishes, disseminates, circulates, or places before the public, or causes * * * to be made, published, disseminated, circulated, or placed before the public, in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, circular, pamphlet, letter, handbill, poster, bill, sign, placard, card, label, or tag, or over any radio station, * * * an advertisement, announcement or statement of any sort regarding merchandise * * * or anything so offered * * * to the public which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading, shall be guilty of a misdemeanor.' (Emphasis supplied.)

The information herein, filed by the District Attorney on March 10, 1955, in said Court of Special Sessions, contains two counts.

The first count, based on subdivision 1 of section 580 of the Penal Law, alleges a conspiracy to commit a crime in violation of section 421 of the Penal Law in that, in the County of Kings, appellants continuously from June, 1953 to December, 1954, with intent to sell and dispose of merchandise, to wit, sewing machines offered by them for sale to the public, corruptly conspired and agreed to disseminate and place before the public in this State 'over a radio station and in other ways', advertisements regarding such merchandise, that such advertisements contained assertions, representations and statements of fact which were untrue, deceptive and misleading, and that such advertisements over said radio station were intended to be, and were, heard by the public in Kings County.

The second count alleges that, it violation of said section 421, appellants, in the same county, during the same period and with the same intent, 'in the form of the live commercial television announcement, over a television station', disseminated and placed before the public an advertisement regarding such sewing machines, and that such advertisement contained an assertion, representation, and statement of fact which was untrue, deceptive and misleading, in that it was falsely represented that appellants would sell a 'Queen Anne Console Magic Stitcher' sewing machine with a sewing chair for the price of $29.50, whereas in truth and in fact appellants did not intend to sell the article so advertised at the price stated.

As part of the first or conspiracy count, the information recites five specific overt acts by appellants in furtherance of the conspiracy: (1) that appellants on December 7, 1953 entered into a contract with station WATV for the telecasting of an advertisement prepared by appellants, (2) that appellants instructed an employee in November, 1953 to enter fictitious sales in the books at $23 a machine, (3) that appellants instructed a salesman in May, 1954 not to sell the sewing machine advertised, under any circumstances, at the advertised price of $29.50, (4) that appellants instructed a salesman in May, 1954 'in the method of rigging a $29.50 sewing machine so that it would not work', and (5) that appellants' salesman in July, 1954 informed a prospective customer in Kings County that the advertised machine 'was made of cast iron and was cheap' and told her not to buy it. The last four overt acts are apparently intended to show that appellants implemented the conspiracy by effectively avoiding the sale of their sewing machine for $29.50.

Of course, there may be no conviction for the crime of conspiracy in the absence of the allegation and proof of at least one overt act to effectuate the object of the conspiracy (Code Crim.Proc. § 398; Penal Law, § 583; People v. Henderson, 298 N.Y. 462, 467, 84 N.E.2d 779, 781; People v. Hines, 284 N.Y. 93, 112-113, 29 N.E.2d 483, 492-493). It should be here noted, however, that the five specific overt acts enumerated above are additional or supplemental to the allegation, in the conspiracy charge itself, of appellants' basic overt acts of disseminating and placing before the public the false advertising 'over a radio station'--the acts which constitute the substantive crime under section 421 of the Penal Law. That this is so is also indicated by the last paragraph of the information, which states: 'The acts and transactions alleged in the foregoing counts of this information are connected together and form a common scheme and plan.' Further reference will be made below as to the allegations of the information, both explicit and implicit, of the overt acts.

After a lengthy trial, the court found appellants guilty on the first, or conspiracy, count. With respect to the second count which charged the substantive crime of false advertising under section 421, the court at the end of the People's case dismissed this count 'as a matter of law' on the ground that 'no crime was committed in Kings County.' While the dismissal was expressly on the law for the purpose of permitting the District Attorney to test the propriety of the ruling by way of an appeal, he has not seen fit to do so. The appeal is only from the judgment convicting appellants on the conspiracy count.

The voluminous record establishes most convincingly the following facts, which will be stated in narrative form:

Operating from the County of Queens, appellants were engaged in the entire metropolitan area in the sale of sewing machines at prices ranging from $29.50 upward. Originally their prospective customers came to them largely through newspaper advertising. However, after a newspaper strike occurred in 1953, appellants decided to resort to other advertising media. Accordingly, shortly before December 10, 1953 appellants entered into an agreement or conspiracy to broadcast or telecast over station WATV, located in Newark, New Jersey, but received all over the metropolitan area, a most attractive advertisement which offered to sell 'for the closeout price of just 29.50' their 'top quality' brand new 1954 model, round bobbin sewing machine, with an exclusive 'Magic Stitcher' which darns, mends, embroiders, monograms, which sews on zippers, which appliques and quilts, which sews over pins and needles, and which sews forward and reverse--all without additional attachments. The offer included a Queen Anne console and a sewing chair and, for the first 50 who would respond, a 22-piece sewing kit and a pair of pinking shears. (The machine thus to be offered became known as the 'Magic Stitcher' and from time to time will be so referred to hereafter.)

as part of the conspiracy appellants further agreed among themselves that under no circumstances would they actually sell the Magic Stitcher for $29.50 to anyone. Instead, they agreed that they would systematically attempt to subvert the sale of that machine by proving to every prospective customer that the advertised machine is actually of inferior quality and could not function properly, and by attempting to 'step up' the sale to a higher priced machine.

Appellants also agreed that this subversion and 'step up' scheme should be operated in this very methodical manner: In response to every inquiry for the $29.50 Magic Stitcher, they would first send a so-called 'lead man' who would take the customer's order by accepting a deposit of as little as 25 cents on the $29.50 machine and who would then advise the customer that another man will deliver the machine and will instruct the customer in its operation. A few days later this second man, known as a 'BF' man, would visit the customer, demonstrate the $29.50 machine, show it to be inoperable and point out that it was basically defective and inferior, and then attempt to persuade the customer to order a 'top quality' machine at a much higher price--whatever the traffic would bear. Failing in this attempt to 'step up' the sale the 'BF' man would leave with the $29.50 machine; it would not be delivered, and the customer's deposit would be returned by mail.

This original conspiracy, which was entered into shortly before December 10, 1953, was renewed shortly before June 7, 1954, and again shortly before October 11, 1954. It was fully effectuated by numerous overt acts:

Appellants entered into three contracts: one on December 7, 1953, one on June 7, 1954, and one on October 11, 1954, with station WATV in Newark, New Jersey, for the audio and video broadcasting (televising) of appellants' advertisement making the...