People v. Lobel

Decision Date21 October 1948
Citation82 N.E.2d 145,298 N.Y. 243
PartiesPEOPLE v. LOBEL et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeals from Supreme Court, Appellate Division, Second Department.

Julius Lobel and Irving Cohen were convicted of grand larceny in the first degree, and, from judgment of Appellate Division of the Supreme Court which unanimously affirmed a judgment of Kings County Court, Leibowitz, J., convicting the defendant Lobel, 273 App.Div. 978, 78 N.Y.S.2d 382, the defendant Lobel appeals pursuant to permission of Chief Judge of the Court of Appeals, and, from judgment of such Appellate Division which, by divided court, affirmed judgment of Kings County Court, Leibowitz, J., convicting defendant Cohen, 273 App.Div. 978, 78 N.Y.S.2d 555, the defendant Cohen appeals, pursuant to permission of an Associate Justice of the Appellate Division.

Affirmed.

FULD, J., and LOUGHRAN, C. J., dissenting; and DESMOND, J., dissenting in part. I. Maurice Wormser and Martin Benjamin, both of New York City, for Julius Lobel, appellant.

William W. Kleinman and David F. Price, both of Brooklyn, for Irving Cohen, appellant.

Miles F. McDonald, Dist. Atty., of Brooklyn (Solomon A. Klein, of Brooklyn, of counsel), for respondent.

LEWIS, Judge.

The indictment upon which rests the judgment of conviction against each of the two defendants-appellants, originally contained 479 counts which charged the appellants and three other defendants with grand larceny first degree and forgery second degree. The indictment also charged that the acts and transactions alleged in the several counts were ‘connected together and constitute part of a common plan and scheme.’ Prior to the trial certain counts charging forgeries and larcenies were dismissed on motion by reason of lack of jurisdiction and insufficiency of evidence before the grand jury; other counts were severed on motion by the district attorney. During the trial all counts charging forgery were dismissed upon the ground that the alleged forgeries were not committed within the jurisdiction of the County Court of Kings County. Of the remaining charges the trial judge submitted to the jury seventy-six counts which charged the defendant Lobel with grand larceny first degree, involving his participation during the year beginning October 18, 1945, in the taking from Mergenthaler Linotype Company hereinafter referred to as Mergenthaler of seventy-six checks in amounts totaling more than $400,000. The jury found Lobel guilty as charged in each of the seventy-six counts submitted for its consideration. As against the defendant Cohen the jury was permitted to consider fifty-six counts charging grand larceny first degree upon which he was found guilty under forty-one counts involving his participation in taking from Mergenthaler forty-one checks in amounts totaling in excess of $152,000.

At the Appellate Division the judgment convicting the defendant Lobel was affirmed unanimously; the judgment convicting the defendant Cohen was affirmed, two justices dissenting and voting to reverse on the law and to dismiss the indictment upon the ground that the specific crimes submitted to the jury were not proved beyond a reasonable doubt. 273 App.Div. 978, 78 N.Y.S.2d 555. The appeal by the defendant Lobel is by permission of a member of this court; the appeal by the defendant Cohen is by permission of a Justice of the Appellate Division.

One of four individuals named in the indictment was W. Arthur Nickel who, before the jury was selected, pleaded guilty to 202 counts of the indictment and thereafter testified for the prosecution. Nickel was employed by Mergenthaler as the head of the accounts-payable division of its executive accounting department. Among the functions of that division was the preparation in triplicate of checks to cover approved invoices bearing notations made in the various departments which had received the supplies to which the attached invoices referred. The daily grist of those checks which numbered more than 2,000 a month with attached invoices covering the items purchased, were presented by Nickel or by one of his subordinates to authorized officers for signature. After they were signed they were sent back to the accounts-payable division where it became the duty of Nickel and his subordinates to mail the original checks to the vendor-creditors and to retain two copies for office records to aid in reconciling the Mergenthaler bank balances. There came a time in September, 1945, when Nickel was induced by persons outside the Mergenthaler office staff to participate in a scheme by which he prepared and submitted to authorized Mergenthaler officers for signature checks drawn to fictitious payee-creditors whose names were chosen by him to simulate the names of creditor companies then doing business with Mergenthaler. For examples ‘Clifton Manufacturing Company and ‘Clifford Manufacturing Company and ‘A. O. Schumacher & Sons' for ‘A. O. Schoonmaker & Sons.’ It was the appellant Lobel not an employee of Mergenthaler who arranged for the printing of invoices bearing the name of the fictitious creditors. Lobel also caused to be made a rubber stamp similar to the stamp used by the Mergenthaler purchasing department, and had a special die cut which duplicated the trade-mark of the creditors whose trade names were simulated. On October 12, 1945, Lobel delivered to Nickel the printed forms of simulated invoices and the rubber stamp. At that meeting he and Nickel arranged to meet on Monday and Thursday nights at an agreed place where Nickel was to deliver any checks he had stolen and collect his share of the proceeds of any checks Lobel had been able to cash. It was also agreed at that meeting that Lobel was to establish a bank account under an assumed name as owner of the fictitious creditor ‘Clifton Manufacturing Company.

It was at this point that Lobel sought the aid of the appellant Cohen to assist him in opening a bank account under an assumed name. Such account in the name of Robert A. Burton was opened at the Modern Industrial Bank where Cohen introduced Lobel.

The first check was stolen by Nickel on October 15, 1945, and was payable to ‘Clifton Manufacturing Company. There were later stolen by Nickel twenty-three other checks payable to the same fictitious creditor and numerous checks to the order of ‘A. O. Schumacher & Sons' and ‘Weber & Scher Manufacturing Company. The technique by which each of the many thefts was accomplished was the same. In each sheaf of checks which Nickel sent up for signature by authorized Mergenthaler officers he included one or more checks with attached invoices which he had prepared and which subsequently he stole and delivered to Lobel. The checks drawn by Nickel to the order of the fictitious creditors ‘Clifton Manufacturing Company and ‘A. O. Schumacher & Sons' had attached thereto forged invoices; the checks drawn by Nickel payable to ‘Weber & Scher Manufacturing Company had attached thereto legitimate invoices. In each instance the authorized officers of Mergenthaler, relying upon the honesty of Nickel and his subordinates, signed the checks thus presented to them in the regular course of business. After the checks were signed they were sent back to the accounts-payable division, the intention of the signatory officers being according to their testimony that all the checks and the proceeds thereof were to be received by the payees named in the checks and not by Nickel or any of the defendants. However, when the signed checks came back to Nickel's desk, he extracted the one or more which he had prepared payable to a fictitious creditor, detached it from the copies and the invoices, placed it in an envelope and, according to his testimony, ‘put it in (his) pocket.’ Later he delivered the stolen checks to Lobel who concededly indorsed each check so delivered to him.

To establish the appellant Cohen's complicity in the larcenies the prosecution introduced evidence to prove that acts by Cohen aided Lobel in reducing the stolen checks to cash. To that end there is evidence that Cohen introduced Lobel to the Modern Industrial Bank where Lobel was known on that bank's books and to its officers as ‘Burton’. Lobel was also introduced by Cohen to West Thirty-Fifth Street Trading Company a check-cashing agency, where Cohen informed the check casher according to the latter's testimony ‘that he (Cohen) is sending somebody down with a check, that I (the check casher) can cash it; that he (Cohen) is going to stand in back of it.’ When the bearer (Lobel) of the check known by the check casher as ‘Mr. Clifton’ arrived to have a check cashed he stated he had been sent there by Cohen. In fact, other checks totaling more than $50,000 were cashed by Lobel at that agency any by the same check casher who testified ‘I asked Mr. Cohen whether if anything happens to these checks, if they bounce, ‘Will you make them good?’ and he (Cohen) said ‘Yes.“ Cohen also introduced Lobel to a notary public who as an incident in the cashing of certain checks was induced to notarize two ‘trade certificates' which had already been signed by Lobel under the fictitious names of ‘Clifton Manufacturing Company,’ John B. Clifton,’ Alfred A. Schumacher,’ Frank Schumacher,’ George Weber and George Scher.’ When the notary inquired of Cohen as to the certificate ”What is this?“ Cohen assured him ”It is O. K.“ When the time for Lobel to secure cash on checks delivered to him by Nickel and drawn to the order of the fictitious creditor of Mergenthaler ‘A. O. Schumacher & Sons' it was Cohen who, when asked by the Atlantic Trading Company another check-cashing agency whether a Mergenthaler check drawn to A. O. Schumacher should be cashed, said ”It is all right, any time he comes in with those checks, you can cash it.“ With that assurance by Cohen, Atlantic Trading Company cashed thirteen Mergenthaler checks drawn to the same fictitious payee in amounts totaling in excess of $52,000.

There...

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