People v. Jennings
| Decision Date | 19 March 1984 |
| Citation | 474 N.Y.S.2d 392,123 Misc.2d 560 |
| Parties | The PEOPLE of the State of New York v. John P. JENNINGS, Defendant. (Two Cases) The PEOPLE of the State of New York v. John P. JENNINGS, Angela Fiumefreddo, Defendants. (Two Cases) The PEOPLE of the State of New York v. John FINNERTY, Defendant. |
| Court | New York Supreme Court |
Michael Rosen of Saxe Bacon & Bolan, New York City, for John P. jennings.
Morton Levine, New York City, for Angela Fiumefreddo.
Kevin Gilleece, White Plains, for John Finnerty.
Asst. Dist. Atty. Peter Grishman, Office of Bronx Dist., Atty. Mario Merola, for the People.
Sentry Armored Courier Corporation, one of the defendants named herein, services its clients by protecting their funds.
A multi-million dollar theft was discovered on the morning of December 13, 1982 in Sentry's office and garage located at 3548 Boston Road in the Bronx. Four males were arrested by agents of the Federal Bureau of Investigation charging them with complicity in the theft. They were prosecuted in the U.S. District Court, Southern District and after conviction for Larceny, Conspiracy and related crimes, were sentenced to various terms of imprisonment and fines. Neither the United States Attorney nor the District Attorney of Bronx County submitted evidence which connected the defendants herein with the commission or complicity in those particular crimes. However, the Bronx District Attorney conducted a separate inquiry into the reported disappearance of a money bag containing approximately $225,000.00 from Sentry. Though that loss was not criminally attributable to the defendants, the investigation brought to light certain criminal charges contained in the indictments herein. The defendants stand charged with Grand Larceny in the Second Degree and Misapplication of Property. All of the defendants move to dismiss the indictments pursuant to C.P.L. 210.30.
Sentry as a common course of its business, entered into agreements with its clients for the specific purpose of providing ready funds for check cashing and other inventory needs. In July of 1981, Sentry entered into such an agreement with Chemical Bank. By the terms of said contract, Sentry was to service Waldbaum's, a customer of Chemical, by providing Waldbaum's outlets with ready cash.
On May 24, 1982, Sentry's Chairman, Kuno Laren, 1 John Jennings and Angela Fiumefreddo, both Vice-Presidents of Sentry, opened a corporate checking account with Citibank. The sum of $100,000.00 was deposited in what was known as a Compensatory Balance Account. Sentry had previously borrowed $400,000.00 from Citibank and the $100,000.00 deposit effectuated a lower rate on the loan. Thus, Sentry gained a direct monetary benefit from the deposit.
The source of the $100,000.00 was the "rolling inventory account" that Sentry maintained in its storage facility on behalf of Waldbaum's. Neither Waldbaum's nor Chemical Bank gave Sentry permission, express or implied, to make such use of these funds.
In addition to the Waldbaum's agreement, Chemical and Sentry entered into a separate agreement in July, 1981. It provided that Sentry would collect Chemical Bank "bulk funds", "fine count" the money, and within seventy-two hours, deposit it in Chemical Bank's account at the Federal Reserve Bank, a standard industry practice. No where in the Grand Jury testimony is it alleged that timely deposit of the funds within the prescribed 72 hour period was not made, nor is it alleged that there was at any time a shortage in the deposit of such funds.
In July of 1981, Lance Mead, an officer of Sentry entered into an agreement with defendant John Finnerty, then a Senior Vice President of Hudson Valley National Bank. The purpose and aim of this agreement was for Sentry to realize a monetary benefit through interest paid by Hudson Valley for "in and out" money--that is deposited and withdrawn within the 72 hour period. To accomplish this, Sentry deposited cash funds taken from the Waldbaum's inventory.
Before the 72 hour expiration, Sentry withdrew the principal and wired such sums into the Chemical Account at the Federal Reserve. However, the interest on these short time deposits remained on deposit in Sentry's Account at Hudson Valley. Thus the principal was fully accounted for, but the interest accrued solely to the benefit of Sentry.
In January of 1983, after the publicized multi-million dollar larceny, Sentry had an audit made of its financial condition. The audit revealed that Chemical's rolling inventory account was $138,000.00 short. Sentry acknowledged the shortage, and sought to withdraw the $100,000.00 plus interest from Citibank, which as previously stated was deposited for the purpose of securing a more favorable interest rate on $400,000.00 pre-existing loan. The withdrawal was refused by Citibank, under a freeze order by Chemical Bank of all Sentry's assets to secure payment for any defecit an audit would show.
On January 11, 1983, Chemical demanded payment in the sum of $97,393.00 which represented the balance still due on the rolling inventory account, and the sum was in fact recovered from the frozen funds deposited in Citibank.
It is important to note that in a prior related decision, a Justice of this Court made a factual finding from the submitted papers in a similar motion. That Court determined that as of January 14, 1983, Chemical's indebtedness to Sentry exceeded Sentry's indebtedness to Chemical. This set off negates any criminal intent and in fact is an absolute defense to the charge of Misapplication of Property ( § P.L. 165.00). But even if this were not so, Sentry's actions utilizing the cash for its own benefit for the two or three day period would not violate the statute. In order to be guilty of the applicable section, Sentry and/or its officers who participated in these transactions, would have to "loan, lease, pledge, pawn or otherwise encumber such property without the consent of the owner thereof in such a manner as to create a risk that the owner will not be able to recover it or will suffer pecuniary loss ".
In reading the Grand Jury testimony, it is clear to this Court that such could not be the consequence of defendants' actions. Concededly, they did not have permission from Chemical to use the funds for a favorable rate on a pre-existing loan, or to gain 2 or 3 day unauthorized...
To continue reading
Request your trial
-
People v. Jennings, 638
...the then Presiding Judge, Justice Goldfluss, on the ground that the proof before the Grand Jury was legally insufficient (see, 123 Misc.2d 560, 474 N.Y.S.2d 392). Two of the indictments, which named Jennings and Fiumefreddo as defendants, were reinstated on the People's appeal to the Appell......
- Doud v. US
-
People v. Jennings
...$100,000, against defendants Jennings and Fiumefreddo is reversed and the indictments are reinstated. (Indictment # 369/84). 123 Misc.2d 560, 474 N.Y.S.2d 392. These indictments stem from an investigation conducted in the wake of the 1983 multi-million dollar theft at the Sentry Armored Cou......