People v. Goldstein

• Citation: 361 N.Y.S.2d 994,79 Misc.2d 996
• Parties: The PEOPLE of the State of New York v. Louis GOLDSTEIN, Defendant.
• Decision Date: 09 December 1974
• Court: New York City Court

Page 994

361 N.Y.S.2d 994

79 Misc.2d 996

The PEOPLE of the State of New York v. Louis GOLDSTEIN, Defendant.

Criminal Court of the City of New York, New York County, Part AP2.

Dec. 9, 1974.

Richard Kuh, Dist. Atty., New York County, by Renee B. Kamm, New York City, for the People.

Warren B. Silberkleit, White Plains, for defendant.

BENJAMIN E. LANDER, Judge.

The defendant is charged with committing the offense of issuing a bad check in violation of section 190.05 of the Penal Law in that for the period from April 11, 1973 to May 30, 1973, he allegedly issued seven checks in the total aggregate amount of $33,250; that, upon being deposited, six of these checks were returned for 'insufficient funds' and the other was marked 'account closed.'

The instant criminal action was initiated in the Summons Part and assigned for trial to be held on September 14, 1973. On that date, in Part AP17, the court granted an adjournment in contemplation of dismissal pursuant to section 170.55 of the Criminal Procedure Law. However, on March 4, 1974, upon the application of the district attorney, the action was restored to the calendar, and it came to trial on October 1, 1974.

The facts of this case are as follows:

The complainant, one Theodore Weiner, made a loan to the defendant in the sum of $10,000 by check dated February 23, 1973 and received, in exchange, a promissory note payable on March 9, 1973. The note not having been paid, the defendant issued a check to the complainant, dated April 11, 1973, in the sum of $7,250, presumably as partial payment of the loan. Upon the failure of this check to clear due to 'insufficient funds' after deposit and redeposit, the defendant gave Weiner a replacement check for the same amount, dated April 18, 1973, which was also dishonored for 'insufficient funds.'

The two aforementioned checks, as well as others subsequently issued by the defendant, were drawn on corporate accounts, the defendant acting as 'representative drawer' as defined by subdivision 3 of section 190.00 of the Penal Law, and it is clear that the defendant had authority to sign the checks.

The complainant testified that on or about May 1, 1973, the defendant asked the complainant for an additional $6,000 loan, the money to go toward the purchase price of two cars. Weiner stated that while he was unable to raise the requested $6,000, he did get together $5,900, which he then delivered to the defendant. Thereafter, the defendant issued four checks to Weiner, each in the amount of $3,437.50. Two of the checks were dated May 4, 1973 and two May 7, 1973. Although the dates on three of the checks were altered, they were all deposited on May 4, 1973 and returned with a notation of 'insufficient funds.'

On May 24, 1973, the defendant gave the complainant a promissory note for $15,900, payable on demand, which apparently represented the original loan of $10,000 plus the $5,900 allegedly lent by Weiner to the defendant on or about May 1, 1973. In addition, the defendant agreed 'to pay all interest charges from this date and to the date of payment in full.' The defendant, however, denied that he ever received any money from the complainant other than the initial loan of $10,000, so that the difference between that amount and the $15,900 specified in the note would supposedly be the interest owed.

The final check at issue here was dated May 30, 1974 and was made out to Weiner for the sum of $3,000. It was subsequently returned marked 'account closed.' The complaint testified that each of the checks, with the exception of the two on May 7, 1973, was dated on the day of delivery. Although the defendant contended that the checks were postdated, the court, after having considered all the evidence and drawn therefrom such inferences as are reasonable and proper under the circumstances, concludes that the checks at issue were not, in fact, postdated. Further, the defendant's argument that he had received authority from the bank to draw on funds beyond those present in his account is also rejected. The evidence elicited at the trial does not support the defendant's claim that he had a reasonable expectation of payment due to an understanding with one of the bank's officers.

The defendant asserts that the instant action was erroneously restored to the calendar after the adjournment in contemplation of dismissal, without prior notice having been given to the defendant for the purpose of opposing the district attorney's application. He also states that a civil action instituted by the complainant in the Supreme Court before the commencement of the present prosecution constitutes an election which bars the criminal proceedings and that, in any event, the loan made by the complainant is usurious, Weiner having charged $2,250 per month interest, and that this is a defense to the instant action against him.

Section 170.55(2) of the Criminal Procedure Law provides that upon 'application of the people, made at any time not more than six months after the issuance of such order, the court must restore the case to the calendar and the action must thereupon proceed.' An extensive discussion of the question whether a defendant is entitled to a prior hearing before the court restores a case to the calendar can be found in People v. Hurt, 78 Misc.2d 43, 355 N.Y.S.2d 728 (Crim.Ct. of the City of N.Y., Bronx Co., 1974). In that case, the defendant was arrested and charged with a misdemeanor. An adjournment in contemplation of dismissal was granted pursuant to CPL 170.55. That same day, the court, in response to the district attorney's application, restored the case to the calendar. The court, in People v. Hurt, held that the use of the word 'must' in section 170.55 of the CPL is mandatory, not directive, and that the court is required to restore the case to the calendar on the application of the People. Further, the court stated, the defendant is not entitled to a prior hearing on the issue, since by vacating the adjournment in contemplation of dismissal (ACD) and restoring the case, no substantial interest of the defendant is affected nor is there any violation of his Fourteenth Amendment Rights.

This court holds the same view. The wording of section 170.55 of the CPL is clear. The court must, upon application of the People, restore the case to the calendar. There is no discretion here for the court to do anything else. Consequently, the defendant's contention that the ACD in the instant case was erroneously vacated has no merit.

The defendant also contends that the initiation of a civil suit against him by the complainant prior to the commencement of criminal proceedings bars the current prosecution. There is absolutely no authority for this claim. Generally, a judgment in a criminal case is no bar to a subsequent civil action based on the same facts. Dalton v. Van Dien, 72 Misc.2d 287, 339 N.Y.S.2d 378 (Sup.Ct., Orange Co., 1972); Cooper v. Mallory,51 Misc.2d 749, 273 N.Y.S.2d 853 (Sup.Ct., Suffolk Co., 1966); City of New York v. Carolla, 48 Misc.2d 140, 264 N.Y.S.2d 408 (City Ct. of N.Y.C., 1965); William Reilly Const. Corp. v. City of New York, 70 Misc.2d 651, 334 N.Y.S.2d 459 (Sup.Ct., Richmond Co., 1964), aff'd 25 A.D.2d 953, 270 N.Y.S.2d 398 (2nd Dept., 1966); Man Radio & Electricals, Ltd. v. Von Cseh, 12 Misc.2d 435, 175 N.Y.S.2d 458 (Sup.Ct., N.Y. Co., 1958), appeal conditionally dismissed 7 A.D.2d 983, 187 N.Y.S.2d 322 (1st Dept., 1959), aff'd 9 A.D.2d 650, 192 N.Y.S.2d 458 (1st Dept., 1959); and Sanders v. Sanders, 178 Misc. 720, 36 N.Y.S.2d 287 (Family Ct., N.Y. Co., 1942).

Similarly, a civil action does not bar a criminal prosecution. People v. Topping Brothers, Inc., 79 Misc.2d 260, 359 N.Y.S.2d 985 (Crim.Ct. of the City of N.Y., N.Y. Co., 1974); People v. Hacker, 76 Misc.2d 610, 350 N.Y.S.2d 67 (Dist.Ct. of Suffolk Co., 1973); People v. Gibbs and Cox, Inc., 74 Misc.2d 242, 342 N.Y.S.2d 170 (Crim.Ct. of the City of N.Y., 1973); City of Buffalo v. Till, 192 App.Div. 99, 182 N.Y.S. 418 (4th Dept., 1920); and People v. Snyder, 90 App.Div. 422, 86 N.Y.S. 415 (4th Dept., 1904). Section 190.05 of the Penal Law is a criminal statute whose violation constitutes a misdemeanor and conviction upon which carries with it certain criminal penalties. What is involved here is not a financial debt which one private individual asserts is owed him by another, as is the subject of the civil action instituted by Weiner against the defendant, but a law which creates a duty to the People of the State of New York and which is prosecuted in the name of the People, regardless of the fact that Weiner, the plaintiff in the civil action, also happens to be the complainant in the instant proceeding. The function of the criminal court is not to provide merely another alternative for the collection of personal debts, but rather to enforce the criminal statutes. Therefore, this court rejects the argument that by instituting a civil suit, the complainant elected his remedy and could not thereafter file a criminal complaint against the defendant.

Moreover, the defendant asserts that the acceptance by the complainant of replacement checks and promissory notes in lieu of the checks bars the defendant's criminal prosecution. Once again, the defendant is confusing the function of a civil action with that of a criminal proceeding. Whatever may be the effect of this claim on the complainant's attempt to recover his loan civilly, the fact that the complainant took replacement checks and promissory notes is irrelevant to a determination of the defendant's guilt or innocence of the offense charged. It is the State of New York rather than the complainant who is prosecuting the present action.

As to the issue of usury which has been raised in connection with this case, the evidence offered at trial is contradictory on the question of whether the financial transaction between the parties was, in fact, usurious. However, since the defense of usury has been made, ...