People v. Levitas
| Decision Date | 25 July 1963 |
| Parties | The PEOPLE of the State of New York v. Perry J. LEVITAS, Jerome R. Jakubovitz, Sidney Nissenbaum, George Goldleaf and Goldleaf Sales Corp., Defendants. The PEOPLE of the State of New York v. Jerome R. JAKUBOVITZ, Sidney Nissenbaum, George Goldleaf, Goldleaf Sales Corp., Defendants (two cases). The PEOPLE of the State of New York v. Ralph LANGSAM, Murray Siegel, Sidney Nissenbaum, George Goldleaf, Goldleaf Sales Corp. |
| Court | New York Supreme Court |
Isidore Dollinger, Asst. Dist. Atty., New York City, for the people.
Morris Goldman, New York City, for defendant Jakubovitz.
Defendant Jakubovitz moves to dismiss indictment No. 1502-1962 on the ground that the testimony adduced before the grand jury fails to sustain the elements of the substantive crimes charged. Under this indictment defendant is charged with a series of counts alleging larceny by fraud, offering false or forged instruments to be filed, perjury first degree, and conspiracy to commit the aforesaid crimes.
The testimony before the grand jury indicates that Jakubovitz, as owner or manager of various rent controlled residential properties in Bronx County, submitted, for each apartment involved, an application for an increase in maximum rent pursuant to section 4 of the Emergency Housing Rent Control Act () McK.Unconsol.Laws, § 8584, and section 33 of the State Rent and Eviction Regulations, McK.Unconsol.Laws, Appendix, which application, according to section 81 of the State Rent and Eviction Regulations, was required to be verified. A portion of said application, a form supplied and required to be used by the rent commission, requested a description of and cost of the improvement, which improvement was the basis for the rental increase involved herein.
In response to this instruction, defendant falsely stated the expenditure for such improvement and, in accordance with the commission's requirements of proof, proffered as evidence of such alleged expenditure, falsely inflated bills. It should be noted parenthetically that defendants Nissenbaum and Goldleaf, apparently the parties responsible for issuing the inflated bills, are not parties to this motion.
In conformance with the mandate of its enabling statute and the regulations governing such increases, the rent commission granted an increase in the maximum rent of the apartments involved. The amount of such increase was predicated upon, and directly proportional to, said false statements of expenditure. As a result thereof, each tenant involved was compelled to pay a higher maximum legal rent than he would have if the rent commission had not relied upon the false statement and inflated bill submitted by defendant Jakubovitz.
Indictments Nos. 1508-1962 and 1509-1962 also concern defendant Jakubovitz and the same fact pattern as indictment No. 1502-1962 but with reference to different apartmetns.
Indictment No. 1548-1962 concerns the same fact pattern as indictment No. 1502-1962, but under said indictment the moving defendants Langsam and Segal are the landlords accused of essentially the same conduct and crimes as defendant Jakubovitz under indictment No. 1502-1962.
All of these indictments are predicated upon the course of conduct, the general substance of which is recited above. It is reasoned that a larceny by fraud took place because tenants paid more rent than they would have been compelled to pay had the rent commission based its orders on proper bills. The charge of perjury is adduced from defendants Jakubovitz, Segal, and Langsam having set forth the amount of the inflated bills in applications which the rent regulations required to be executed under oath. In arriving at a violation of section 2051, Penal Law, the only conceivable theory upon which this count can be based is that the applications and supporting bills were 'instruments' within the meaning of that section. The conspiracy counts arise from the contention that the moving defendants conspired with defendants Nissenbaum, Goldleaf and Goldleaf Sales Corporation to commit the aforesaid crimes.
Defendants contend that these acts do not constitute a violation of any of the substantive crimes charged in the indictments. 'It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms' (Todd v. United States, 158 U.S. 278, 282, 15 S.Ct. 889, 890, 39 L.Ed. 982). Accordingly, the court has examined the testimony before the grand jury to determine the validity of such contention.
The essential element of the crime of perjury consists of the making of a false statement under oath. 'The charge of perjury cannot be sustained, unless it be first proved * * * that the person charged took an oath in one of the forms recognized by law' (People v. Gillette, 126 App.Div. 665, 668, 111 N.Y.S. 133, 135, [1st Dept.]). In O'Reilly v. People of the State of New York, 86 N.Y. 154, the Court of Appeals, at pages 161-162 of 86 N.Y., enunciated the oft-cited standard that, 'To make a valid oath, for the falsity of which perjury will lie, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act, by which the affiant consciously takes upon himself the obligation of an oath.'
Section 1621, Penal Law, specifically states that the fact that the oath involved was defectively administered will not serve as a defense to the charge of perjury. However, this section does not obviate the necessity for some oath to have been taken (O'Reilly v. People, supra; People v. Goodheim, 188 App.Div. 148, 149, 176 N.Y.S. 468; People v. Gillette, supra; People ex rel. Greene v. Swasey, 122 Misc. 388, 203 N.Y.S. 22; Milmoe v. Meyer, Co.Ct., 15 N.Y.S.2d 899).
The inapplicability of section 1621 to situations where there is an absence of any proof of the conscious taking of an oath is further clarified in the language of People ex rel. Greene v. Swasey (supra) when in discussing section 1621, Penal Law, the court stated, 122 Misc. at page 391, 203 N.Y.S. at page 25:
In view of the foregoing, those counts alleging perjury in the first degree, which are predicated solely upon evidence of a verification and a certification, unbuttressed by any testimony indicating that an oath was undertaken, are deemed fatally defective. Accordingly, each count of perjury in indictments Nos. 1502-1962, 1509-1962 and 1548-1962 is dismissed.
Conversely, this court deems valid each count of perjury in the first degree predicated upon proof of a verification, a certification, and upon testimony that an oath was consciously administered and taken. Measured by this standard of proof, the court denies that portion of the movant's application addressed to counts 17 and 21 of indictment No. 1508-1962 and dismisses all other counts alleging perjury in the first degree in said indictment.
Examination of the grand jury minutes, with reference to the alleged crime of larceny by false pretenses, indicated that the evidence fails to establish the essential elements of said crime. It is well established that the necessary components of this crime are intent, false pretense and reliance upon such false pretense by the party deprived of property (People v. Lobel, 298 N.Y. 243, 255, 82 N.E.2d 145, 150; People v. Miller, 169 N.Y. 339, 351, 62 N.E. 418, 422; People v. Williams, 135 Misc. 564, 565, 238 N.Y.S. 712, 713; People v. Cerrato, 99 Misc. 256, 165 N.Y.S. 694; People v. Hart, 35 Misc. 182, 186, ...
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