People v. Kaminsky
| Decision Date | 18 January 1985 |
| Citation | 486 N.Y.S.2d 814,127 Misc.2d 497 |
| Parties | The PEOPLE of the State of New York v. Herbert KAMINSKY, Vincent Carnevale, and Steve Weiser, Defendants. The PEOPLE of the State of New York v. Herbert KAMINSKY, Defendant. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty., New York City (John Moscow, Asst. Dist. Atty., New York City, of counsel), for the People.
Irving Anolik, New York City, for defendant Kaminsky.
Ronald Margolis, New York City, for defendant Carnevale.
Frankfurt, Garbus, Klein & Selz, P.C., New York City (Alan Levine, New York City, of counsel), for defendant Weiser.
The defendant Herbert Kaminsky has been charged under Indictment No. 4275/84 in eleven counts, with grand larceny in the second degree (Penal Law § 155.35), and in one count, with a scheme to defraud in the first degree (Penal Law § 190.65). The defendant Kaminsky has also been charged, jointly with the defendants Carnevale and Weiser, under Indictment No. 4274/84 in three counts with grand larceny in the second degree, and in one count with a scheme to defraud in the first degree. The defendants have moved to dismiss the indictments on various grounds, including insufficiency of the evidence to justify the charges (CPL 210.20, subd. 1b).
In reviewing the grand jury minutes to determine whether the evidence was legally sufficient to support the charges (CPL 70.10, subd. 1), the court must view the evidence most favorable to the People's theory and presume that the grand jury drew any inferences that the evidence would permit supportive of the indictment. (Compare, People v. Pelchat, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 464 N.E.2d 447 [1984].)
The indictment against the defendant Kaminsky is predicated upon a series of ten transactions between Kaminsky and different jewelry wholesalers, from November, 1980 until April, 1984. Count four of the indictment also includes a transaction in which Kaminsky allegedly acted as a loan broker. Each of these eleven transactions is separately charged as grand larceny in the second degree. There is also a single count of scheme to defraud in the first degree.
The jewelry transactions fall into a pattern. Kaminsky allegedly would contact a wholesaler of jewelry or watches and would ask to see samples of merchandise, ostensibly on behalf of prospective purchasers. In several instances, Kaminsky represented that the purchaser was an Atlantic City casino (counts 1, 6, 9); in other instances a law firm or a doctor (counts 2, 3). Kaminsky would use as a reference someone in the jewelry trade or known personally to the jeweler. The jeweler would bring a number of his wares to Kaminsky's office. Kaminsky allegedly maintained numerous offices on Park Avenue, Lexington Avenue, Second Avenue, and Broadway, among other locations. At least one of the offices was in a jeweler's building. Kaminsky also operated under a number of corporate names, including Premier Showcase, Bric Jewelers, and Beverage Container Recycling Corp. Once the jewelry was delivered, Kaminsky would use various means to induce the jeweler to leave items with him, purportedly for resale to the customers. In many instances, Kaminsky displayed a check purportedly issued by the customer, or a deposit slip, or would give a check as collateral. (Counts 1, 5, 7, 9.) Kaminsky sometimes represented that the customer's check was drawn on a foreign bank and was not yet collected by the local bank. Kaminsky also allegedly used other tactics to gain the jewelers' trust, such as returning a portion of the jewels with which he was initially entrusted and then asking for other more valuable items to display to the customer. (Counts 5, 7, 10.) On occasion, Kaminsky would pay a small percentage of the purchase price and promise to pay the balance upon collection of the check (counts 1, 9) or upon delivery of the balance of the merchandise (count 6). In at least one instance (count 10) Kaminsky signed a consignment agreement, and in another instance (count 11) requested an accomplice to sign. In other instances, Kaminsky gave memoranda acknowledging receipt of the merchandise (counts 6, 7, 8, 9). In every instance, including those previously recited, witnesses testified that the jewelry was given to Kaminsky on consignment (counts 1, 2, 3, 5). The agreement, which is an established practice in the trade, stipulates that the consignee obtains possession but not title to the consigned items for the purpose of selling the items on behalf of the owner and of remitting the agreed upon value or, failing that, returning the items, unaltered, to the owner. The consignee assumes all liability for loss or damage in the amount agreed upon.
In every instance, Kaminsky allegedly received tens of thousands of dollars worth of jewelry on consignment and subsequently claimed that he was unable to acquire the purported customer's funds or to return the jewelry. In one instance, after allegedly trying unsuccessfully to persuade a jeweler to give him possession of a $180,000 necklace, Kaminsky arranged a meeting where the necklace was displayed and simply walked away with it. (Count 8.) In another instance, after obtaining a $100,000 bracelet on consignment, Kaminsky refused to return it for six months until he agreed to ransom it for $50,000 in cash. (Count 5.) In other instances, Kaminsky allegedly attempted to settle with the jeweler for a portion of the value of the jewelry (counts 1, 10) or acknowledged his debt with personal notes which he subsequently dishonored (count 9).
The fourth count involves an alleged offer of loan brokerage services by Kaminsky through Premier Showcase, Inc. to one Cassidy. Kaminsky allegedly told Cassidy that Premier was a lending institution and "a lot of other things" and offered to obtain $300,000 in credit for Cassidy for a fee of $25,000. The fee was paid. The loan was never obtained. Kaminsky repaid Cassidy $6,500.
The defendant Kaminsky is also alleged to have engaged in similar transactions with the aid of defendants Weiser and Carnevale. Specifically, the three defendants are charged with having on two occasions taken delivery of 1,000 dozen sunglasses, C.O.D. and having failed to pay for the delivered merchandise. In the first instance, defendant Kaminsky allegedly showed the owner a cashier's check purportedly belonging to the prospective buyer, in an amount sufficient to cover the $19,800 cost of the glasses, and is alleged to have induced the owner to part with the glasses by representing that payment would be made in full when the check was cleared. (Count 2.) The defendant Carnevale was present during the transaction and signed an invoice. The seller ultimately received $4,000. In the second instance, the defendant Kaminsky allegedly ordered a second shipment of sunglasses from another company, C.O.D., claimed not to have sufficient funds to pay upon delivery, but took possession of the glasses and promised to pay the balance the following day. (Count 3.) Both Carnevale and Weiser were present and helped persuade the owners to leave the merchandise. Kaminsky ultimately executed promissory notes for the $18,000 cost, but paid only $2,000 on the notes. Both of these incidents occurred at 1350 Broadway within three days. On the first occasion, the business was represented as Kuwait Enterprises and on the second occasion, Beverage Container Recycling Corp.
Under the fourth count, the defendants are charged with having placed an advertisement offering to purchase clothing in a trade publication. The defendants represented themselves as Apparel Discount and accepted delivery of 280 coats valued at $40,000 from one O'Reilly in response to the advertisement. O'Reilly, pursuant to a conversation with Kaminsky, delivered samples of the coats. Weiser and Carnevale were present. Carnevale represented that he was a buyer from Alexander's Department Stores who had agreed to purchase the lot. Kaminsky promised to pay O'Reilly upon delivery to Apparel. The coats were delivered. Kaminsky and Carnevale represented that Carnevale had to obtain a cashier's check for the purchase price. Subsequently, Kaminsky told O'Reilly that Carnevale had found fault with the coats and that Alexander's would not buy them. When O'Reilly again returned for the money or coats, the coats were gone. Kaminsky said he had sold the coats elsewhere. He gave O'Reilly a forty-day note, which he subsequently dishonored. O'Reilly demanded payment. He attended a meeting where Kaminsky, Carnevale and Weiser were present. He was paid $1,000 and told to return later in the day for the balance. Upon his return, the defendants and all evidence of the office were gone.
Count one alleges a scheme to defraud, based upon "businesses [which] advertised that they would buy certain merchandise and obtained such merchandise by false and fraudulent pretenses, representations and promises."
Count 12 of Indictment No. 4275 and Count 1 of Indictment No. 4274 charge a scheme to defraud in the first degree under Penal Law § 190.65, subd. 1, which states:
A person is guilty of a scheme to defraud in the first degree when he (a) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons or to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and (b) so obtains property from one or more such persons.
The section derives from the Federal mail fraud statute (U.S.Code, tit. 18, § 1341) and contains parallel language. (See, Hechtman, Practice Commentaries, McKinney's Cons.Laws of New York, Book 39, Penal Law § 190.65, p. 197, 1984-1985 Pocket Part.) New York courts have consistently applied principles derived from the Federal statute in construing the Penal Law section. (See, e.g., People v. White, 101 A.D.2d 1037, 1039, 472...
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