People v. Podolsky

• Decision Date: 18 November 1985
• Citation: 496 N.Y.S.2d 619,130 Misc.2d 987
• Parties: The PEOPLE of the State of New York v. Zenek PODOLSKY, Thomas Lydon, Stephen Cardassi, Gerald Musano, Stuart Podolsky, Jay Podolsky, George Roitman, Jack Roitman, Morris Leisner, Max Marx, Charles Fridman and Rouhallah Sohayegh.
• Court: New York Supreme Court

Page 619

496 N.Y.S.2d 619

130 Misc.2d 987

The PEOPLE of the State of New York v. Zenek PODOLSKY, Thomas Lydon, Stephen Cardassi, Gerald Musano, Stuart Podolsky, Jay Podolsky, George Roitman, Jack Roitman, Morris Leisner Max Marx, Charles Fridman and Rouhallah Sohayegh.

Supreme Court, Criminal Term New York County, Part 50.

Nov. 18, 1985.

Robert Morgenthau, Dist. Atty., New York County (Anne Barden, Joanne Siegmund, New York City, of counsel), for the People.

Irwin Brownstein, New York City, for Stephen Cardassi.

Roy Kulcsar, New York City, for Charles Fridman.

Robert Hill Schwartz, New York City, for Morris Leisner.

James Zane, New York City, for Thomas Lydon.

Herald P. Fahringer, New York City, for Max Marx.

Michael Ross, New York City, for Gerald Musano.

Gustave H. Newman, New York City, for Jay Podolsky.

Anthony Napolitano, New York City, for Stuart Podolsky.

Jacob Evseroff, New York City, for Zenek Podolsky.

Jack Hoffinger, New York City, for George Roitman and Jack Roitman.

Kenneth Paul, Brooklyn, for Rouhallah Soyayegh.

HAROLD J. ROTHWAX, Justice.

These defendants have been charged in eleven separate indictmen with engaging in a scheme whereby they, as landlords, would hire a common group of coconspirators headed by two men, Morris Lender and Harmon Lambert, to forcibly remove legal tenants from their apartments in order to vacate the buildings in which the tenants lived, for resale and at great profit to the defendants. These indictments are the result of an investigation in which the members of the Lender-Lambert group were first charged with conspiracy, burglary and related crimes, to which charges the majority of the group members pleaded guilty and subsequently became State's witnesses. Consequently, all but three of the defendants face multiple indictments, a series having been voted prior to and another subsequent to the receipt of accomplice testimony. Each of the defendants is charged with having conspired with the Lender-Lambert group to commit burglary, grand larceny and/or coercion and with substantive offenses of coercion, grand larceny and burglary in regard to specific tenants. The court addresses the issues common to all of the defendants' omnibus motions, as follows:

LEGAL SUFFICIENCY OF THE EVIDENCE

The court has reviewed the minutes of the grand jury proceedings (CPL 210.30) underlying each indictment and finds the evidence sufficient in each instance to support the conspiracy, grand larceny and coercion counts.

The evidence sufficed to establish, in each instance, an agreement between the landlord defendants and Lender and Lambert, whereby the latter would harass, intimidate and commit crimes against tenants of the landlord in order to frighten such tenants into vacating their apartments. Lender and Lambert were to be paid a fixed amount, ranging from $500 to $1500, per tenant who abandoned his apartment. Pursuant to these agreements, Lender and Lambert would move a group of people recruited by them for this purpose, into vacant apartments with the landlord's assistance. These recruits in turn would destroy property belonging to the legal tenants by vandalism, flooding and other means; would break into and ransack apartments of legal tenants; would threaten, intimidate, harass and occasionally assault the legal tenants; and would generally do their utmost to make the building unlivable. Lender and Lambert also installed some of the recruits as superintendents, with the instruction to commisera with the tenants, to suggest that they move, but not to effect repairs or otherwise interfere with the operation of the plan. The recruits received lodging for the period of the operation. The "supers" received a fee. Lender and Lambert were paid for each tenant who vacated his apartment. The landlords obtained vacant and significantly more valuable property for resale.

In the initial series of indictments, proof of the landlord defendants' participation in the plan was circumstantial, consisting of evidence of their knowledge of the operation and their acquiescence, in the form of visits to the premises or to other premises with Lender and/or Lambert; of cooperation in making apartments available at nominal or no rent to coconspirators, and in assisting the group in relocating; of efforts to disassociate themselves from the premises during the period of operation by, for example, pretending to have sold to Lender or Lambert; by the actual sale of the building after the operation; and, decisively, by the evident pattern of the methods of the Lender-Lambert group in regard to several buildings owned by the same defendant over an extended period of time. (See, e.g., People v. Ozarowski, 38 N.Y.2d 481, 381 N.Y.S.2d 438, 344 N.E.2d 370 [1976].) Once the testimony of their coconspirators became available, there was direct evidence of the agreement each landlord had with Lender and Lambert in regard to particular buildings, which evidence was corroborated by the foregoing circumstantial evidence. (See, e.g., People v. Sabella, 35 N.Y.2d 158, 168-169, 359 N.Y.S.2d 100, 316 N.E.2d 569 [1974].) The evidence established, prima facie, that each defendant individually agreed with Lender and Lambert that conduct amounting to burglary, larceny and coercion be committed by the Lender-Lambert crews (Penal Law 105.00, et seq.).

LARCENY

The defendants contend that, regardless of the proven nature of the agreements, the alleged facts are insufficient to establish larceny as a matter of law, based upon the forcible removal of tenants from premises owned by the accused. The court upholds the grand larceny counts.

Certainly, the defendants' ownership of the premises alleged to be the subject of larceny does not preclude prosecution. Since larceny is an offense against the rightful possession of property, title is not dispositive. (People v. Hutchinson, 56 N.Y.2d 868, 869, 453 N.Y.S.2d 394, 438 N.E.2d 1109 [1982]; People v. Izzo, 96 Misc.2d 634, 635, 409 N.Y.S.2d 623 [Bronx Crim Ct, 1978]; Perkins, Crim Law 2d Ed [1969], Larceny § B [1], pp 238-239.) An owner for purposes of the larceny statute is "any person who has a right of possession ... superior to that of the thief" (Penal Law 155.00, subd. 5). Thus, for example, the lawful possession of property is an interest "superior" to a security interest in the property "even if legal title lies with the holder of the security interest pursuant to a conditional sales contract or other security agreement" (Penal Law 155.00, subd. 5; compare, Borgen v. State, 56 Md.App. 521, 468 A.2d 390, 393, n. 4 [1983].)

The general principle has been succinctly stated thusly:

"[I]f personal property in the possession of one other than the general owner by virtue of some special right or title is taken from him by the general owner, such taking is larceny if it is done with the felonious intent of depriving such person of his rights * * *. Thus, one having the property in goods may be guilty of stealing them from one to whom he has given them in custody as a special possession, as in the case of a lawful lien, pledge, bailment or levy of legal process. 2 Wharton's Criminal Law, 12th Ed., section 1177."

(Trevathan v. Mutual Life Ins., Co., 166 Or. 515, 113 P.2d 621, 623, 624 [1941]; see, also, People ex rel. Travis v. Sheriff, 275 App Div 444, 446, 90 N.Y.S.2d 848 [3d Dept.1949]; People v. Walden, 124 Misc.2d 615, 620, n. 4, 478 N.Y.S.2d 501 [Sup.Ct.N.Y.County, 1984]; Palmer v. People, 10 Wend. 165, 166 [1833]; State v. Parker, 104 Utah 23, 137 P2d 626, 628-629 [1943]; Ann. Larceny by Owner, 58 A.L.R. 330).

In the court's opinion, a leasehold qualifies as a special property interest in the leased premises. "(A) residential lease is now effectively deemed a sale of shelter and services by the landlord." (Park West Management v. Mitchell, 47 N.Y.2d 316, 324-325, 418 N.Y.S.2d 310, 391 N.E.2d 1288 [1979] ). ¹ This sale gives the tenant a contractual right to possession of the premises, which cannot be divested by the landlord except in accordance with applicable statutes. (See, e.g., Fisher v. Velasquez, 126 Misc.2d 24, 28-29, 480 N.Y.S.2d 992 (Civ.Ct. Kings County, 1984); N.Y. City Rent and Eviction Regulations; Real Prop. Law Art. 7 §§ 223-b; 232-a, -c; 235; 235-b, -d; Real Property Actions and Proceedings Law, Art. 7, 7A). The premises at issue were invariab governed by rent stabilization laws limiting the grounds upon which tenancies may be terminated and declaring lease provisions which are inconsistent to be void. (See, e.g., Fernandez v. Tsoumpas Brothers, 126 Misc.2d 430, 432, 481 N.Y.S.2d 948 (Civ.Ct.N.Y.County 1984); Rent Stab.Law and Code §§ 53, 54, 10, 11; Ad.Code City of NY § Y51-6.0 subd. a, b). The same law creates a vested interest in the tenant by requiring a landlord to offer to renew any residential lease "at a rent not in excess of the stabilization rent * * * and otherwise on the same conditions as the expiring lease." (Rent Stab Code § 60; see, e.g., 1202 Realty Assoc. v. Evans, 126 Misc.2d 99, 101, 481 N.Y.S.2d 208 [Civ.Ct.Kings County, 1984] ). Despite limitations upon the absolute right to dispose of a leasehold as, for example, by assignment (see, e.g., Sitomer v. Melohn Properties, 108 A.D.2d 706, 707, 485 N.Y.S.2d 1014 [1st Dept.1985] ), the basic characteristic of a tenancy continues to be the contractual right to possess the premises exclusive of the entire world for the term of the lease (see, e.g., Schnee v. Jonas Equities, 109 Misc.2d 221, 222, 442 N.Y.S.2d 342 (App.Term 1981); Rochester Poster Advertising Co. v. State, 27 Misc.2d 99, 101, 213 N.Y.S.2d 812 [Court of Claims 1961] ). Thus, even under modern precepts, a tenant can, for example, maintain an action against the landlord for trespass. (See, e.g., State v. Greenwald, 446 A.2d 44 (Me.1982) (burglary); State v. Bailey, 25 N.C.App. 412, 213 S.E.2d 400, 402 [1975] ). The tenant must, therefore, be regarded as the "owner" of the premises for purposes of the larceny stat...