People v. White
| Decision Date | 05 March 1984 |
| Citation | 472 N.Y.S.2d 730,101 A.D.2d 1037 |
| Parties | The PEOPLE, etc., Appellant, v. Justin WHITE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
John J. Santucci, Dist. Atty., Kew Gardens (Gary Fidel, Jeanette Lifschitz, and Richard G. Denzer, Kew Gardens, of counsel), for appellant.
John C. Groarke, P.C., Maspeth, for respondent.
Before MOLLEN, P.J., and LAZER, MANGANO and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Queens County, dated October 23, 1981, which granted defendant's motion to set aside the jury's verdict finding him guilty of the crime of a scheme to defraud in the first degree and to dismiss the indictment.
Order reversed, on the law, jury verdict reinstated and case remitted to the Supreme Court, Queens County, for the imposition of sentence.
Scheme to defraud in the first degree, under section 190.65 of the Penal Law, states in relevant part:
The trial court found that defendant did not employ any false promises, pretenses or misrepresentations, and accordingly held, as a matter of law, that there was no proof of defendant's intent to defraud any individual or engage in a scheme to defraud 10 or more persons.
We cannot agree. The evidence established that defendant not only engaged in direct misrepresentations, but also employed a captious, deceptive and misleading sales "pitch" which was designed and intended to be misinterpreted by those solicited.
Defendant was the office manager for the "Police Officers Times". His compensation consisted of a 35% share of the weekly gross advertising revenue for directing and controlling the solicitation of "advertising" from merchant businesses. He was personally responsible for the commissions of his telephone solicitors, and in addition paid the salaries of men hired to pick up the solicited funds.
When dealing with merchants and employees, defendant used several false names, including Nick Conte and Jack Tracey. Under his supervision, and at his direction, two telephone solicitors also used false names. Defendant instructed these solicitors to follow a written sales "pitch" which described the "Police Officers Times" as "[t]he police newspaper", and "our police newspaper". The solicitors were instructed to emphasize the word "police" throughout the "pitch". A former employee of defendant testified that 5 to 10 solicitors made calls every day, and that he personally averaged 75 calls per day. He testified that every month defendant instructed him to emphasize a new lead article on a current police related topic, such as bullet proof vests. Several checks received were payable to the police vest fund. The witness testified that he never saw printed any of the lead articles which he promoted. Indeed, only one paper was published during his entire seven-month tenure as a solicitor. In addition to the false names employed, the misleading nature of the publication's name and its use and emphasis in the "pitch", direct misrepresentations were part and parcel of the scheme. Solicitees were promised "business card size" ads for $50. The "pitch" read, "[w]hat we do is take your business card, reproduce it in the paper; it is fifty dollars, tax deductible".
The People introduced the testimony of 12 merchants who had been solicited by the "Police Officers Times". Each described his or her payment to the "Police Officers Times" as a contribution or donation. Those who paid $50, instead of receiving a business card size ad, received an "ad" less than one tenth that size which appeared on a page with up to 250 other ads. In addition, many of the merchant witnesses testified that they expected their contributions to benefit the police department--to wit: The money "was supposed to be for the policemen's vests"; the check "was made out in order to benefit the Police Department"; the purpose of the check "was for the Police Vests Fund"; the donation was "to encourage more police to get out on the streets"; the purpose of this check was "for a bullet proof vest"; "the contribution or $80.00 would be going towards some--for the benefit of the police"; some of the money was for "the police"; and a conversation about gun control "got me to donate my fifty dollars".
While the trial court's position was that it had erred in admitting such testimony, we find it material and probative on the captious and misleading nature of the publication's title and its use in the sales pitch. The telephone solicitations were obviously made to 10 or more persons, and were plainly designed to prompt merchants to give their money to defendant. The merchants did give their money to him in reliance upon both false and misleading representations.
Defendant argues on appeal that the merchants did not rely on the patently false representations regarding the size of the "ads". Contrary to defendant's assertion that this absence of reliance on size negates an element of the crime, we find that this fact belies the assertion that defendant was engaged in a purely private commercial enterprise, which was intended to be understood as such by those solicited. That the merchants who testified were not primarily concerned with the size of their ads indicated that they relied on the misleading nature of the "pitch", and believed their payments were contributions of a charitable, and not commercial, nature.
Returning to section 190.65 of the Penal Law, we note that this statute, which became effective on January 1, 1977 (L.1976, ch. 384, § 2), derives from the Federal mail fraud statute (U.S.Code, tit. 18, § 1341) and contains parallel language (see Givens, Additional Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 190.60, p. 143, 1983-1984 Pocket Part). Accordingly,...
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