People v. Ribowsky

• Decision Date: 14 February 1991
• Citation: 77 N.Y.2d 284,568 N.E.2d 1197,567 N.Y.S.2d 392
• Parties: , 568 N.E.2d 1197 The PEOPLE of the State of New York, Respondent, v. Larry RIBOWSKY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 392

567 N.Y.S.2d 392

77 N.Y.2d 284, 568 N.E.2d 1197

The PEOPLE of the State of New York, Respondent, v. Larry RIBOWSKY, Appellant.

Court of Appeals of New York.

Feb. 14, 1991.

Leon B. Polsky, Jack S. Hoffinger and Mark W. Geisler, New York City, for appellant.

Charles J. Hynes, Dist. Atty. (Robin A. Forshaw, Jay M. Cohen and Peter A. Weinstein, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted of one count of conspiracy in the fifth degree, six counts of offering a false instrument for filing in the first degree, and two counts of perjury in the first degree. The charges arise out of a scheme to defraud insurance companies by fabricating the injuries and treatment of automobile accident victims. The participants included doctors, insurance agents and others who conspired with the law offices of Stuart R. Kramer, P.C. from 1979 through 1984. Pursuant to the scheme, clients who retained the Kramer law firm following an automobile accident were referred to one of several chiropractors in the metropolitan New York area who then inflated the value of their services or, on instructions from the attorneys, referred the patient to Dr. Jesus Carmona, a radiologist, for diagnosis of nonexistent fractures (Carmona fractures). Dr. Carmona's diagnoses were incorporated into the chiropractors' medical reports to insurance companies and used by the Kramer attorneys to obtain inflated settlements for their clients. The principal of the firm, Kramer, has been convicted of various felonies and disbarred as a result of his conduct (see, People v. Kramer, 132 A.D.2d 708, 518 N.Y.S.2d 189, affd. 72 N.Y.2d 1003, 534 N.Y.S.2d 912, 531 N.E.2d 633; Matter of Kramer, 120 A.D.2d 299, 509 N.Y.S.2d 47). Several others also have been prosecuted.

Defendant was a lawyer associated with Kramer who specialized in uninsured motorist cases. According to the evidence, he knowingly relied on the false medical reports to represent claimants at arbitration hearings and conduct settlement negotiations. He also agreed with Kramer that Stephen Kihl, another attorney in the Kramer firm, could use defendant's home as a business address on retainer and closing statements filed with the Office of Court Administration. The arrangement allowed the firm to conceal its dual representation of both the driver and the passengers involved in an automobile accident by using Kihl's name and defendant's address for one client and the Kramer name and address for the other. The People further charged that defendant appeared before the Grievance Committee of the Second and Eleventh Judicial Districts on two occasions and testified falsely about this use of his address by Kihl.

Defendant's principal arguments for reversal are that (1) the perjury counts against him were duplicitous, (2) the manner of their submission to the jury constituted error, and (3) the trial court's failure to submit the question of venue to the jury on the conspiracy count constituted reversible error. We conclude that there was no error requiring reversal of the perjury convictions and that the error in failing to submit the question of venue to the jury was harmless.

I

A

The perjury indictment contained two counts charging that defendant testified falsely before the Grievance Committee on June 6 and June 23. A subsequent bill of particulars set forth three specifications of perjury for each date. Based on this, defendant contends that the charges were duplicitous because they averred more than one offense within a single count of the indictment in violation of CPL 200.30(1). He relies on the reasoning in Matter of Di Lorenzo v. Murtagh, 36 N.Y.2d 306, 367 N.Y.S.2d 761, 327 N.E.2d 805, and the holdings of People v. Davis, 72 N.Y.2d 32, 530 N.Y.S.2d 529, 526 N.E.2d 20, and People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577.

In Di Lorenzo, we held that where a defendant was acquitted on two perjury counts, but the jury was unable to agree on those remaining, retrial on the open counts was not barred by double jeopardy if each allegedly perjurious statement involved separate acts justifying consecutive sentences. In reaching this result, the Court concluded that an indictment could allege separate counts of perjury for each false statement arising from sworn testimony at two separate proceedings if each alleged perjurious statement related to a separate matter or act (Matter of Di Lorenzo v. Murtagh, supra, 36 N.Y.2d at 310-312, 367 N.Y.S.2d 761, 327 N.E.2d 805).

Relying on Di Lorenzo, defendant contends that separate perjurious statements made at the same hearing must be separate offenses and charged as such in separate counts of the indictment. Thus, he asserts it was improper for the prosecution to charge him with a single count of perjury for three allegedly false statements at each hearing. Although we stated in Di Lorenzo that "[i]n charges of perjury * * * there may well be * * * discrete subjects as to each of which false testimony was given in sequence", we also cautioned that separate offenses may not be proper where a series of questions relate to a single, integral inquiry (Matter of Di Lorenzo v. Murtagh, supra, 36 N.Y.2d at 312, 367 N.Y.S.2d 761, 327 N.E.2d 805). Di Lorenzo stands for no more than the proposition that several false statements made during one proceeding may or may not be separable into distinct events, depending on the subject matter of those statements.

Here, defendant was charged with two separate counts of perjury for testifying falsely on two separate occasions about a single subject, the use of his home address by Kihl for improper purposes. Although the bill of particulars asserted that three false statements were made during each proceeding, the statements related to the same subject matter. Thus, the elaboration of all three in one count of perjury was not improper because each count was predicated on defendant's conduct at a single proceeding, the multiple falsehoods encompassed by each count were interrelated, and each of the falsehoods was intended to mislead the Grievance Committee about the illegal activities of the Kramer law firm.

People v. Davis, 72 N.Y.2d 32, 530 N.Y.S.2d 529, 526 N.E.2d 20, supra, and People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577, supra, do not hold otherwise. In Keindl, in discussing the reasons why a count that charges more than one offense is void for duplicity, we stated "[t]he prohibition against duplicity furthers not only the functions of notice to a defendant and of assurance against double jeopardy, but also ensures the reliability of the unanimous verdict. If two or more offenses are alleged in one count, individual jurors might vote to convict a defendant of that count on the basis of different offenses; the defendant would thus stand convicted under that count even though the jury may never have reached a unanimous verdict as to any one of those offenses" (supra, at 418, 509 N.Y.S.2d 790, 502 N.E.2d 577; see also, People v. Davis, supra, 72 N.Y.2d at 38, 530 N.Y.S.2d 529, 526 N.E.2d 20).

These concerns are not implicated in the case before us. The bill of particulars specified which statements made during the two proceedings were allegedly false, thus providing defendant with sufficient notice of the charges against him and assuring that he would not be reprosecuted for those statements. Moreover, the rendition of a separate finding on each false statement of perjury provided assurance that the jury verdict was unanimous as to at least one of them. Thus, defendant's case does not violate the proscription of CPL 200.30(1) as implemented by People v. Davis, 72 N.Y.2d 32, 530 N.Y.S.2d 529, 526 N.E.2d 20, supra, and People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577, supra; see also, United States v. Berardi, 629 F.2d 723, 729 [2d Cir.], cert. denied 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293; United States v. Isaacs, 493 F.2d 1124, 1154-1155 [7th Cir.], cert. denied 417 U.S. 976, 94 S.Ct. 3183, 3184, 41 L.Ed.2d 1146; Vitello v. United States, 425 F.2d 416, 418 [9th Cir.], cert. denied 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50.

B

In submitting the perjury charges, the court directed the jury to deliberate and return a general verdict on each count. The verdict sheet submitted to them contained an entry for the general verdicts and also spaces for the jury to indicate a guilty or not guilty verdict as to each false statement alleged in the bill of particulars. Defendant asserts that this was error because it permitted the jury to enter special verdicts.

Although special verdicts or interrogatories are commonplace in civil cases, the Criminal Procedure Law makes no provision for them and they are generally disfavored in criminal trials (see, CPL 300.10[4]; United States v. Orozco-Prada, 732 F.2d 1076, 1084 [2d Cir.], cert. denied 469 U.S. 845, 105 S.Ct. 154, 155, 83 L.Ed.2d 92; United States v. Spock, 416 F.2d 165; but see, CPL 300.10[6]; 310.50; see generally, 3 LaFave & Israel, Criminal Procedure § 23.7[d]; 23A C.J.S., Criminal Law, § 1402). The primary objection is that their form, a step-by-step progression of "yes or no" questions, may inevitably lead the jury to a finding of guilt (see, United States v. Spock, supra, at 182; United States v. Palmeri, 630 F.2d 192, 202-203 [3d Cir], cert. denied 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616). That danger was not present in defendant's case, however, because each specification upon which the jury was asked to deliberate could lead to an independent finding of defendant's guilt of perjury (see, Vitello v. United States, 425 F.2d 416, 418, supra; Arena v. United States, 226 F.2d 227, cert. denied 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830). Moreover, the use of such verdicts has been approved in criminal trials where the special findings benefited the defendant (United States v. Spock, supra), were neither inherently prejudicial nor...