People v. Rosano

• Decision Date: 01 July 1980
• Citation: 409 N.E.2d 1357,431 N.Y.S.2d 683,50 N.Y.2d 1013
• Parties: , 409 N.E.2d 1357 The PEOPLE of the State of New York, Respondent-Appellant, v. Lawrence ROSANO, Michael Newmark, Thomas Naples, also known as Tim Naples, and Village Mall Townhouses, Inc., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 683

431 N.Y.S.2d 683

50 N.Y.2d 1013, 409 N.E.2d 1357

The PEOPLE of the State of New York, Respondent-Appellant, v. Lawrence ROSANO, Michael Newmark, Thomas Naples, also known

as Tim Naples, and Village Mall Townhouses, Inc.,

Appellants-Respondents.

Court of Appeals of New York.

July 1, 1980.

James M. La Rossa and Anthony Napolitano, New York City, for Village Mall Townhouses, Inc., and others, appellants-respondents

Lawrence S. Goldman and Anthony Napolitano, New York City, for Thomas Naples, appellant-respondent.

Robert Abrams, Atty. Gen. (John M. Farrar, Shirley Adelson Siegel and George D. Zuckerman, Asst. Attys. Gen., of counsel), for respondent-appellant.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, essentially for the reasons stated in the opinion of Mr. Justice Leon D. Lazer at the Appellate Division (69 A.D.2d 643, 419 N.Y.S.2d 543; see, also, People v. Chesler, 50 N.Y.2d 203, 428 N.Y.S.2d 639, 406 N.E.2d 455).

We would note, however, that we express no opinion as to the necessity of demonstrating that a defendant harbored an intent that the statement be uttered or published as true in order to sustain a conviction for making an apparently sworn false statement in the second degree. (See Penal Law, § 210.35.) It suffices to say that, in our opinion, the People failed to demonstrate beyond a reasonable doubt that the affidavits submitted to the lending institution constituted a falsity.

Further, we concur with the Appellate Division that subdivision 3 of section 79-a of the Lien Law does not fall prey to any constitutional infirmity. (See People v. Farina, 290 N.Y. 272, 49 N.E.2d 134.) That section provides that "(f)ailure of the trustee to keep the books or records required by section seventy-five shall be presumptive evidence that the trustee has applied or consented to the application of trust funds received by him as money or an instrument for the payment of money for purposes other than a purpose of the trust as stated in section seventy-one." (See, also, Lien Law, § 75, subd. 4.) It is readily apparent that both courts below, and quite correctly, treated this statutory presumption as only a permissible inference that defendants, by failing to keep statutorily prescribed records, used trust funds for other than authorized trust purposes. Of course, the presumption does not relate to criminal intent. Thus, the prosecution was not relieved of its duty to prove defendants' guilt beyond...