People v. Lennon
| Decision Date | 26 November 1980 |
| Citation | 434 N.Y.S.2d 95,107 Misc.2d 329 |
| Parties | The PEOPLE of the State of New York v. Bernadine LENNON, Charles Matson, Deborah Matson, Michelle Payne, Karen Winters and Gina Woolfolk. |
| Court | New York County Court |
Patrick D. Monserrate, Broome County Dist. Atty. (Thomas P. Walsh, Binghamton, of counsel), for plaintiff.
Steven T. Wax, Broome County Public Defender (John L. Perticone, Binghamton, of counsel), for defendants.
The above-named defendants have moved to dismiss their respective indictments, which accuse them of the crime of Scheme to Defraud in the First Degree in violation of section 190.65 of the Penal Law, on the grounds that the conduct alleged in each indictment is not included within the area of conduct proscribed by section 190.65 of the Penal Law.
Essentially, each indictment accuses the particular defendant of obtaining property from more than ten persons by engaging in a "bad check scheme constituting a systematic on-going course of conduct" with the intent to defraud and obtain property by "false and fraudulent pretenses, representations and promises." Section 190.65(1) of the Penal Law 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 of such persons."
The defendants argue that the language and history of this Scheme to Defraud statute preclude its application to situations where, as here, a person issues a series of bad checks. The defendants contend that sections 190.60 and 190.65 of the Penal Law were designed to penalize consumer-fraud schemes whereby property is obtained by false or fraudulent pretenses, representations or promises when the intent is to defraud more than one person (section 190.60) or more than ten persons (section 190.65), and that issuing a bad check is not a "false or fraudulent pretense, representation or promise" within the meaning given to those words in section 155.05(2) of the Penal Law. The defendants rely heavily upon the distinctions set forth in section 155.05(2), describing the ways in which larceny may be committed, and argue that the Legislature has distinguished issuing a bad check (sub-section (c)) from obtaining property by false promise (sub-section (d)) so that allowing the prosecution of a bad check as a scheme to defraud will obliterate the distinctions made in section 155.05(2) and render subsection (c) meaningless.
Although the three reported cases (People v. Lasek, 94 Misc.2d 1007, 405 N.Y.S.2d 991; People v. Ford, 103 Misc.2d 249, 428 N.Y.S.2d 612; People v. Block & Kleaver, 103 Misc.2d 758, 427 N.Y.S.2d 133) dealing with prosecutions under the Scheme to Defraud statute deal with fraudulent schemes not involving the issuance of bad checks, they do provide some guidance in determining whether the issuing of a series of bad checks may properly be prosecuted as a scheme to defraud. In People v. Ford, 103 Misc.2d 249, 428 N.Y.S.2d 612, the court indicated that, like the Federal mail fraud statute, the New York Scheme to Defraud statute makes the nefarious character of the scheme rather than the dollar loss the essence of the crime (id. p. 252, 428 N.Y.S.2d 612, citing Givens, Additional Commentary, McKinney's Cons. Laws of N.Y., Book 39, 1979-1980 Pocket Part, Penal Law, § 190.60 pp. 78-80). The presence of fraud rather than larceny is the essential characteristic emphasized by the statute.
The importance of this distinction between fraud and larceny to the legislative scheme is shown by the structure of the Penal Law. Section 155.05, upon which the defendants rely, is contained in Title J, entitled "Offenses Involving Theft." Section 190.65 is contained in Title K, entitled "Offenses Involving Fraud." Within Title K, Article 190 deals with "Other Frauds" and it is within this Article that both the issuance of a bad check and the scheme to defraud are described (sections 190.05 and 190.65). Thus, the legislature treats both offenses as offenses characterized by fraud. Issuing a bad check becomes a larceny under 155.05 when one obtains property by means of issuing the bad check (section 155.05(2)(c)). Similarly, a scheme to defraud, as described in section 190.65, would also be a larceny by false promise under section 115.05(2)(d) because property is received by means of a false promise pursuant to a scheme to defraud. (See People v. Block & Kleaver, 103 Misc.2d 758, 764, 427 N.Y.S.2d 133.)
Therefore, under the Legislative scheme of the Penal Law, the same conduct may constitute a fraud offense under Article K and a larceny offense under Article J if property is actually obtained by means of the fraud. This duplication exists whether the fraud is perpetrated by issuing a bad check, false advertising or criminal impersonation (see, e. g., People v. Block & Kleaver, 103 Misc.2d 758, 427 N.Y.S.2d 133, supra; People v. Lasek, 94 Misc.2d 1007, 405 N.Y.S.2d 991). Furthermore, this duplication is one of necessity rather than one which we may choose to avoid as the defendants have asked. The occurrence of conduct constituting a fraud offense is a necessary element of a scheme to defraud. For example, in People v. Lasek, supra, the court was presented with this duplication of offenses in a motion to dismiss on double jeopardy grounds. In that case, the defendants were first prosecuted for criminal impersonation and petit larceny. A subsequent prosecution for scheme to defraud based upon the same conduct was held to be barred by the first prosecution. The court held that the particular fraudulent conduct, criminal impersonation, was a necessary element of the offense of scheme to defraud and could be prosecuted either as ten offenses of criminal impersonation and ten offenses of petit larceny or as one offense of scheme to defraud. However, because these alternatives are "equivalent" the prosecution for one barred the subsequent prosecution for the other (id. p. 1009, 405 N.Y.S.2d 991.)
Given the categories of offenses described in the Penal Law and the case law dealing with the nature of a scheme to defraud, it is entirely consistent for the issuing of a series of bad checks, a fraud offense, to constitute the fraudulent conduct which is necessary to commit the crime of scheme to defraud. The Scheme to Defraud statute proscribes fraudulent conduct used as part of a scheme to obtain property. Clearly, issuing bad...
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