People v. Norman

• Citation: 650 N.E.2d 1303,627 N.Y.S.2d 302,85 N.Y.2d 609
• Parties: , 650 N.E.2d 1303 The PEOPLE of the State of New York, Appellant, v. Robert L. NORMAN, Respondent. The PEOPLE of the State of New York, Respondent, v. John KING, Appellant.
• Decision Date: 09 May 1995
• Court: New York Court of Appeals

Page 302

627 N.Y.S.2d 302

85 N.Y.2d 609, 650 N.E.2d 1303

The PEOPLE of the State of New York, Appellant, v. Robert L. NORMAN, Respondent.

The PEOPLE of the State of New York, Respondent, v. John KING, Appellant.

Court of Appeals of New York.

May 9, 1995.

[85 N.Y.2d 611] [650 N.E.2d 1304] James T. King, Dist. Atty. of Jefferson County, Watertown (Dennis A. Germain and Jane G. LaRock, of counsel), for appellant in the first above-entitled action.

[85 N.Y.2d 612] John A. Cirando, and Ivette Iza Zenner, Syracuse, for respondent in the first above-entitled action.

Perini & Hoerger, Hauppauge (Maureen S. Hoerger, of counsel), for appellant in the second above-entitled action.

James M. Catterson, Jr., Dist. Atty. of Suffolk County, Riverhead (Glenn Green, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

TITONE, Judge.

In each of these cases, the defendants were convicted of larceny after selling goods to customers, taking the customers' money and then failing to deliver the promised goods. Their appeals from the judgments of conviction require us to revisit the specialized requirements for the crimes that were known as larceny by false promise and larceny by false pretenses before the adoption of the Penal Law.

I. People v. Norman

In 1989, according to the trial evidence, defendant entered into a one-year lease on an old sawmill in South Colton, New York, opened a business office in the City of Watertown and began selling kits to individuals wishing to build their own log homes. In June of 1990, Joseph and Sharon Gana, responding to a newspaper advertisement, contacted defendant and expressed an interest in purchasing one of his log home kits. During their discussions, defendant offered the Ganas the opportunity to become dealers for his product. As dealers, the Ganas would be responsible for allowing prospective customers to see their own log home and would receive a 15% commission on any home they sold or on any sale defendant made as a result of their referral.

On July 19, 1990, the Ganas signed a contract to purchase a log home kit for $20,325. The delivery date was left open because the Ganas needed to dig a foundation before they would be ready to receive their logs. Payment was to be made upon delivery, which, according to defendant, would occur within two weeks of the Ganas' request.

Approximately three weeks after the Ganas signed their contract, defendant called them and stated that he had another couple from their area, the Mikels, who were interested in a dealership. Defendant was prepared to give the Ganas' dealership to this couple unless the Ganas paid for the log home kit by August 9th. According to Sharon Gana, defendant was quite insistent on that date. Anxious not to lose their dealership opportunity, the Ganas obtained a loan and wired defendant the full amount of the purchase price on August 8, 1990. No arrangements for delivery were made at that time, since the Ganas' foundation was still not ready.

In mid-September of 1990, the Ganas told defendant that they were ready for their kit, but, despite defendant's promise to deliver at least part of the material, several weeks passed without a delivery. In the ensuing weeks, defendant offered the Ganas a series of excuses for his failure to deliver, including problems with truckers, problems with the mill, a death in the family, a need for new equipment and a claim that the logs milled for the Ganas had turned black. In the end, the Ganas travelled to defendant's office, arriving just in time to see him packing up his telephone, office items and books. At that point, defendant told the Ganas that he had spent their money and was unable to obtain further materials or supplies without new financing.

A subsequent investigation revealed that defendant's bank account had been overdrawn during the first week in August and that he had used the Ganas' money to pay his personal bills and overdue business debts. Defendant admitted to investigators that none of the money had been used to purchase materials for the Ganas' log home kit. When asked whether he intended to compensate the Ganas, defendant first told investigators that he was trying to obtain financing based on the equity he had in the mill. He said nothing further on this subject, however, when confronted with the fact that he did not have an ownership interest in the mill.

In addition to the testimony of the Ganas and several investigators, the People elicited testimony from other customers who had purchased log home kits from defendant and had had similarly unsatisfactory experiences. The evidence furnished by these witnesses, which was admitted primarily on the question of defendant's larcenous intent, demonstrated that defendant had several other unfilled orders outstanding at the time he accepted the Ganas' money. It was undisputed that defendant had laid off all of his mill workers and had "shut down" operations at the mill some two weeks before he asked for the Ganas' money.

In opposition to the People's case, the defense called two individuals who had purchased log homes from defendant and were completely satisfied with his services. The defense also produced Laurie Mikels, who confirmed that she and her husband had expressed an interest in becoming log home kit dealers for defendant. One additional witness stated that the mill had a small inventory of logs in the early part of the summer of 1990. Two others described the movement of logs on the mill property and the shipment of several truckloads of logs away from the property.

Testifying on his own behalf, defendant described how his business operated and discussed his dealings with the Ganas. According to defendant, he had used the Ganas' money to buy logs for their kit and, in fact, their logs remained, already milled, on the South Colton property. Responding to testimony from the Ganas and other customers, defendant denied having given them a series of false excuses for his failure to deliver kits that had been ordered and paid for. Defendant further stated that he had been in the process of attempting to obtain financing for his ailing business at the time he was arrested for stealing from the Ganas. Defendant acknowledged having been convicted of two prior crimes: grand theft arising out of a 1984 Florida incident and a Virginia felony.

At the close of the evidence, the trial court, echoing the language of Penal Law § 155.05(2)(d), instructed the jury on the elements of larceny by false promise and the special burden of proof associated with that crime. The jury thereafter found defendant guilty of third degree grand larceny (Penal Law § 155.35) and third degree criminal possession of stolen property (Penal Law § 165.50). On defendant's appeal from the judgment of conviction, however, the Appellate Division reversed and dismissed the indictment, holding that the evidence had been insufficient "to show guilty intent on the part of defendant." (202 A.D.2d 1013, 1014, 609 N.Y.S.2d 482.) In so ruling, the Court stressed that defendant's intent not to keep his promise "may not be inferred from the mere nonperformance of the promise" (see, Penal Law § 155.05[2][d]. The People now appeal from that Court's order.

People v. King

The incident out of which the charges against defendant King arose began when defendant, who owned a used car business, engaged in a conversation with Carol Bondy, a local print shop owner with whom he had dealt on several occasions. According to the People's trial evidence, Bondy expressed an interest in buying a small Bronco or Jeep for her son, who would soon be returning home after a stint with the Marines. Within a month, defendant called Bondy to tell her that he had seen a Bronco and planned to acquire it for her at an auction. A few weeks later, defendant drove a two-tone Bronco to Bondy's shop and offered to sell it to her. With defendant's permission, Bondy's boyfriend, Karl Rohrbaugh, took the vehicle for a test drive and pronounced it sound. Bondy then agreed to pay $4,977.50 for the vehicle and gave defendant a $2,000 down payment. This transfer of funds was witnessed by an individual named Fred Peterson, who was in Bondy's shop to transact business of his own. Peterson, who testified for the People at trial, recalled talking to Bondy about her purchase of the Bronco. According to Peterson, Bondy pointed to the Bronco, which was parked in the parking lot, and he noted that the vehicle, a 1988 bronze and beige model, was the same as the one he had.

The following week, defendant told Bondy that he would need the rest of the money for the Bronco "to get the title processed." Bondy met with defendant and, in Rohrbaugh's presence, gave him the additional $2,977.50. Papers, including one for the Department of Motor Vehicles, were signed.

Despite repeated inquiries, defendant failed to deliver the Bronco to Bondy, instead giving her and Rohrbaugh a series of excuses over the course of some 25 conversations. Finally, approximately four months after Bondy had paid defendant for the car, Rohrbaugh confronted him, demanding that he either deliver the vehicle or return the purchase price. At that point, defendant denied having received the full $4,977.50 from Bondy. In a subsequent telephone conversation, defendant told Rohrbaugh that he had spoken to an attorney and had been advised not to say anything else. Shortly thereafter, Bondy received a notice that defendant had brought an action against her in Small Claims Court for $2,000 for "monies due on car deal." At that point, Bondy contacted the District Attorney's office to report what she believed to be a crime. Subsequent investigation revealed that no vehicle meeting the description of the two-tone Bronco was ever registered or titled to defendant.

Testifying on his own defense, defendant stated that he had shown Bondy a 1987 black vehicle and agreed to sell it to her for $5,800. According...