People v. Leisner

• Decision Date: 21 February 1989
• Citation: 538 N.Y.S.2d 517,535 N.E.2d 647,73 N.Y.2d 140
• Parties: , 535 N.E.2d 647 The PEOPLE of the State of New York, Respondent, v. Morris LEISNER, Appellant. The PEOPLE of the State of New York, Respondent, v. Max MARX, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 517

538 N.Y.S.2d 517

73 N.Y.2d 140, 535 N.E.2d 647

The PEOPLE of the State of New York, Respondent, v. Morris LEISNER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Max MARX, Appellant.

Court of Appeals of New York.

Feb. 21, 1989.

Richard A. Greenberg and Robert Hill Schwartz, New York City, for Morris Leisner, appellant.

Herald Price Fahringer, New York City, and Diarmuid White, Buffalo, for Max Marx, appellant.

Robert M. Morgenthau, Dist. Atty. (Lisa Feiner and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Appellants Morris Leisner and Max Marx were indicted on December 14, 1984, and charged with one count of conspiracy and numerous substantive counts of attempted extortion and coercion based upon their alleged involvement in a plot to force tenants from their rent-controlled apartments. ¹ Appellants, who owned several At trial, the prosecution attempted to show that Leisner and Marx hired Morris Lender and Hardman P. Lambert to "relocate" tenants from the subject buildings. ² As the proof at trial demonstrated, the relocation techniques used by Lender and Lambert were highly unsavory. From December 1978 to July 1980, Lender and Lambert installed drug addicts, pimps, prostitutes and assorted thugs in appellants' buildings in order to coerce the tenants into abandoning their apartments. When threats, intimidation and abuse did not immediately produce the desired results, apartments were broken into and property was stolen or vandalized. According to the prosecution, appellants were aware of and condoned these actions.

buildings in Manhattan both individually and jointly, allegedly sought to rid the buildings of tenants by instilling fear of personal injury and property damage, thereby increasing the buildings' resale value. Ultimately, appellants were convicted solely of conspiracy in the fourth degree (Penal Law § 105.10[1] ), and sentenced to indeterminate terms of imprisonment of from 1 to 4 years.

With respect to the conspiracy count in the indictment, the prosecution endeavored to show that all of the aforementioned activities were part of one single integrated conspiracy. Although a majority of the buildings in question were individually owned, the prosecution theorized that the movements of the Lender-Lambert "group" were coordinated with the purchase and subsequent sale of buildings by Marx and Leisner, and that these activities constituted a unitary conspiracy to commit extortion. Eighty-six overt acts were alleged in the indictment, a significant majority of which occurred before December 14, 1979.

In defense to the substantive counts, both Leisner and Marx argued that they neither knew about nor authorized the use of any unlawful means to empty their buildings. In response to the conspiracy count, appellants argued that, if a conspiracy existed at all, the facts revealed three separate and discrete agreements concerning the relocation of tenants from different buildings: (1) the Marx buildings (W. 23rd St. and E. 30th St.); (2) the Leisner buildings (W. 22nd St., W. 80th St., Eighth Ave.); and (3) the jointly owned buildings (W. 53rd St.; W. 46th St., Ninth Ave. and 48th St.).

Based upon this argument, defendants submitted the following written request to charge: "[I]n order to convict either defendant of the conspiracy alleged in Count One, you must find that the single overall conspiracy alleged in that Count existed, and that each defendant joined that conspiracy. If you find that more than one conspiracy existed, you cannot convict either defendant of conspiracy unless you find that at least one of those conspiracies is the conspiracy alleged in Count One and the defendants were members of that conspiracy." In addition, appellants submitted a written charge directing that before the jury could convict either defendant of conspiracy, it must find that at least one overt act was committed within the past five years as required by the Statute of Limitations (CPL 30.10[2][b] ). Neither of these charges nor their equivalents were given to the jury.

After a six-week trial and five days of deliberation, the jury acquitted Leisner and Marx of one count of attempted grand larceny On appeal, appellants challenged, inter alia, the trial court's failure to give the two above-mentioned charges. The Appellate Division rejected their arguments and affirmed the convictions. We now reverse.

and one count of attempted coercion, both involving the same tenant, Ion Burta. Both defendants were convicted of conspiracy to commit grand larceny in the first degree by extortion. The jury was unable to reach a verdict on the remaining substantive counts.

WAIVER OF STATUTE OF LIMITATIONS CHARGE

Appellants argue that the trial court committed reversible error by refusing to charge, as requested in writing by appellants, that before the jury could convict either defendant of conspiracy, it must find that at least one overt act was committed after December 14, 1979. We agree.

The establishment by the prosecution of a timely overt act by one of the conspirators in furtherance of the conspiracy was clearly necessary to satisfy both the applicable Statute of Limitations (CPL 30.10[2][b] ), and the elements of the crime (Penal Law § 105.20; see also, Sand, Siffert, Loughlin & Reiss, Modern Federal Jury Instructions--Criminal, Aug. 1986 Supp., at 52-53 [Matthew Bender 1986] ). Such an instruction was critical here because an overwhelming majority of the overt acts on which the People relied were outside the Statute of Limitations. Because it is impossible to determine at this point whether the conviction was supported by a timely overt act, it plainly cannot be said that the error was harmless (see, Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; United States v. Head, 641 F.2d 174, [4th Cir.] on remand 697 F.2d 1200, cert. denied 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367; United States v. Greichunos, 572 F.Supp. 220, 225-227).

Although it did not disagree that a Statute of Limitations charge would have been appropriate, the Appellate Division concluded that reversal was not required because, in its view, appellants had withdrawn their requested charge on the issue, thereby waiving their objection to the court's failure to so charge (138 A.D.2d 273, 276, 526 N.Y.S.2d 85). We disagree. In People v. Le Mieux, 51 N.Y.2d 981, 435 N.Y.S.2d 710, 416 N.E.2d 1045, this court noted that, under the clear language of CPL 470.05(2), an objection is deemed preserved when the court fails to grant a written charge request, regardless of the absence of a specific postcharge exception. Further, even though the defendant in Le Mieux had made specific reference to other omitted charges while making only a blanket renewal of all his prior requests (including the request disputed on appeal), the issue was not forfeited because defendant had not "demonstrated a clear intent to waive a position already preserved" (id., at 983, 435 N.Y.S.2d 710, 416 N.E.2d 1045). In People v. Whalen, 59 N.Y.2d 273, 464 N.Y.S.2d 454, 451 N.E.2d 212, in contrast, the trial court stated that it was granting defendant's submitted charge, but then delivered a different version than was requested by defendant. In that situation we held that "[w]hen a Judge grants a request to charge and then fails to deliver the charge as requested, the requesting party has an obligation to draw the error to the Judge's attention" (People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212, supra). Finally, in People v. Hoke, 62 N.Y.2d 1022, 479 N.Y.S.2d 495, 468 N.E.2d 677, we concluded that when a Trial Judge denies a requested charge and, in its place, gives a different instruction on the same subject without a defense exception, the propriety of the court's refusal to charge is preserved, but any issue as to the instruction as given is not.

Here, defense counsel made a written request to charge on the Statute of Limitations, but the trial court did not promptly rule on that request. ³ Thus, appellants During the precharge conference, the Statute of Limitations was mentioned in two contexts. First, the subject was broached in regard to two substantive counts involving Ion Burta, a tenant in the West 53rd Street building. Second, appellant Marx's counsel raised the limitations issue in connection with the multiple conspiracy theory he had advanced. Neither of these discussions evinced a "clear intent" by defendants to waive their right to a Statute of Limitations charge on the entirely separate issue of the overt act element of the conspiracy count. Nor can such an intent be inferred from the fact that appellants' counsel took 21 specific exceptions to the court's charge, without mentioning the Statute of Limitations issue (see, People v. Le Mieux, supra ). ⁴

                were entitled to assume their request had been denied (CPL 300.10[5] ).  Additionally, since the trial court did not give a variation on the requested charge, appellants were under no further duty to preserve their claim (People v. Whalen, supra ).   Therefore, this case is most similar to Le Mieux and the only question is whether appellants "demonstrated a clear intent" to abandon their request on the Statute of Limitations.  We believe they did not
                

MULTIPLE CONSPIRACIES

Since there must be a retrial, we deem it appropriate to comment on an additional error in the trial court's charge so that its repetition may be avoided. Appellants argue that the trial court committed reversible error by refusing to charge the jury on the possibility of multiple conspiracies. Additionally, they argue that, at best, the proof at trial established a number of discrete conspiracies, not the single conspiracy alleged in the indictment. Appellants contend that the trial court's refusal to charge as requested, and the prejudicial spillover effect resulting from combining separate conspiracies into a single count...