Urciolo v. State

• Decision Date: 10 October 1974
• Docket Number: No. 266,266
• Parties: , 80 A.L.R.3d 488 Raphael URCIOLO v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 607

272 Md. 607

325 A.2d 878, 80 A.L.R.3d 488

Raphael URCIOLO v. STATE of Maryland.

No. 266.

Court of Appeals of Maryland.

Oct. 10, 1974.

Joseph Forer, Washington, D. C., for appellant

Clarence W. Sharp, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

The appellant, Raphael Urciolo, an attorney in the District of Columbia, was charged in two indictments returned in 1970 by a grand jury in Anne Arundel County; ¹ upon His conviction arose out of the conversion of the partial proceeds from a real estate settlement for a tract of land in Anne Arundel County. We will not here attempt to set out fully the labyrinthian, episodic, myriad of facts concerning the history of the property, or the appellant's complete involvement therewith, but will content ourselves with recounting only so much of the background data as is directly relevant to the issues now before us. ³

removal of the cases to the Circuit Court for Howard County he was convicted in a nonjury trial (by Mayfield, J.) of having feloniously embezzled from John Rogers currency in the amount of $1,788.53 in violation of Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 129. ²

Following a tax sale in 1932, John J. Rogers and his wife acquired a 48 acre tract of land from the County Commissioners of Anne Arundel County; in September 1963 an option to purchase the property, expiring on March 24, 1965, was granted to Arthur J. McGinnis. In 1964 Helen Clarke, a 'strawman,' on behalf of Thomas E. Chance, who had obtained a deed from the heirs of the record owner at the time of the tax sale, filed suit against the Rogerses in the Circuit Court for Anne Arundel County to void the tax sale. The Rogerses retained the appellant to represent them in those equity proceedings and Winson D. Gott, Jr., an Annapolis attorney specializing in realty law, became co-counsel, since the appellant was not a licensed Maryland practitioner.

With misgivings about the validity of the tax deed and anticipating a lack of success in their defense of establishing adverse possession, the Rogerses, upon the advice of the appellant and before the resolution of the equity proceedings (which voided the tax sale deed), entered into an agreement with Helen Clarke in 1964 which provided that upon the In April 1965, because of Mrs. Rogers' deteriorating health, the Rogers sold his business and their dwelling and departed for Arizona, ignorant of the contract of sale and its assignment. At the time of their departure the Rogerses entrusted the appellant with all their business affairs concerning the property. (Mrs. Rogers died in Arizona in July 1965.)

enrollment of the equity decree the Rogerses and Clarke would jointly convey the property to two trustees, Joseph J. Urciolo (appellant's brother), who would represent the Rogerses' interest, the Thomas E. Chance, to represent the Clarke (and his own) interests. Because of the outstanding option in favor of McGinnis these 'trustees' were to hold title to the property without the deed reflecting their fiduciary status and were to sell it as they might be directed by the geneficiaries, but not before the expiration of McGinnis' option. Pursuant to that agreement[325 A.2d 881] Mr. and Mrs. Rogers and Helen Clarke, on March 24, 1965, deeded the property to Joseph Urciolo and Thomas Chance as joint tenants; they rpomptly entered into a contract for the sale of the property to one Frank Calcara and agreed that the Urciolo Realty Company (although not a licensed realtor in Maryland) would receive a ten percent sales commission. On May 26, 1965 the property was conveyed to a 'combine' or partnership comprised of John V. Arban, Pascal Della Badia (two clients of Urciolo) and Florence E. Urciolo (appellant's wife), organized by the appellant, for a consideration of $94,600, as a result of the assignment by Calcara to the syndicate of his contract to purchase.

Although the syndicate had not raised all the cash required, it appeared that Chance was due to leave the State and settlement was held in Annapolis on May 25 or 26, 1965, at the offices of the Capitol Savings and Loan Association with Winson D. Gott, Jr., acting as 'settlement officer.' Three sparse memoranda evidence the settlement; one prepared by Gott in advance, dated May 24, set forth the purchase price at $94,600, with $23,000 payable in cash at the settlement ($1,000 having been reportedly paid as a deposit) with the balance, in the amount of $70,600, to be The appellant came to the settlement as a representative of the purchasing partners as well as to look out for the Rogerses' interest; he brought, from members of the syndicate, checks totalling only $10,300, announcing that this should be sufficient to pay Chance's portion of the cash. He delivered the checks to Gott as 'settlement officer,' who, in turn, handed them over to Thomas Chance. Chance deposited the checks and in turn gave Gott a check in the amount of $3,108.37, representing the excess over the $7,191.63 which had been computed as Chance's share of the cash paid at settlement. The deed, as well as the mortgage, both dated May 26, 1965, were delivered at settlement and subsequently recorded.

secured by a purchase money mortgage from the partnership. The total cash computed as due from the partners (including stamps, recording, title examinations, etc.) totalled $23,819.84. Another memorandum, dated merely 'May 1965' (referred to as exhibit 6b) indicated the same purchase price and mortgage, but included deductions for a broker's commission to Urciolo Realty ($9,460) and 'one-half deed stamps,' leaving $14,383.25, one-half of which ($7,191.63) was allocated as payable to each of the nominal grantors, Joseph J. Urciolo and Thomas E. Chance. The half allocated to Joseph J. Urciolo (as 'trustee' for Rogers) was debited with a trustee's commission to Joseph J. Urciolo ($2,365) and attorneys fees to Urciolo and Urciolo ($600) and Gott ($500) for professional services rendered in the case of Clarke v. Rogers, showing a net balance for Rogers' share at $3,726.62. Gott testified that all of the amounts relating to attorneys' and brokers' fees and commissions appearing on the memoranda were supplied him by the appellant at the time of settlement.

By letter dated June 10, 1965, Gott forwarded to the appellant, at his District of Columbia office, the deed which had been released from record and advised that he 'will send the balance of funds on hand and title policy.'

The third memorandum, dated June 12, 1965, by Gott (referred to as exhibit 6c) deducted $7,191.63, the amount paid Chance from the total of $10,300 brought to the Raphael Urciolo received Gott's check, endorsed it and deposited it in the District of Columbia on June 21, 1965, in a personal account owned by him and his wife. In due course the drawee bank, Maryland National Bank in Annapolis, paid it on June 23, 1965.

settlement by Urciolo, and from the balance of $3,108.37, Gott deducted $500 as payment of his fee in the tax sale litigation, and $819.84 as settlement costs, listing as '(b)alance on hand-check herewith [325 A.2d 882] . . .' $1,788.53. On the same date Gott drew a check on his trustee account in that amount, payable to 'Raphael G. Urciolo, Attorney,' with a notation thereon, 'John J. Rogers & Wife.' ⁴

Gott could not recall whether the check payable to the appellant had been mailed to him or had been delivered to him in person; his letter of June 10 advised that it would be sent to the appellant in Washington, D. C., and the trial court assumed it had been mailed.

John J. Rogers never received any of the proceeds of the check from the appellant; he first learned of the sale and the settlement while a resident of Arizona when the appellant informed him that the property had been sold for $90,000. It was not until his return to Anne Arundel County, in about March, 1966, after suit had been filed against him by McGinnis, that he discovered the actual purchase price and concluded that he 'had not been treated fairly.' At about the time of the trial of the proceedings in McGinnis v. Rogers, the appellant offered to pay Rogers $3,400, which Rogers refused. ⁵

The trial court in its memorandum, after noting that lack of jurisdiction in the court was one of the grounds raised by the defendant in his motion for judgment of acquittal, and citing Peddersen v. State, 223 Md. 329, 164 A.2d 539 (1960); Martel v. State, 221 Md. 294, 157 A.2d 437, cert. denied, 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed.2d 1732 (1960); Bowen v. State, 206 Md. 368, 111 A.2d 844 (1955); and Waldrop v. State, 12 Md.App. 371, 278 A.2d 619, cert. denied, 263 Md. 722 (1971), concluded:

'Unquestionably, the Waldrop Court reviewed the law in embezzlement cases recognizing the four different criteria announced in Martel, and also recognizing the revisions stated in Peddersen, and stated that in Peddersen the Court had concluded that since the essential element in embezzlement was intent, the venue could be laid in any county in which: (1) the money or property was received with intent to embezzle, or (2) in the county in which the money or property was possessed and the intent to embezzle was formed, regardless of the fact that actual conversation may have taken place in another county or state. In the instant case, it is clear that the defendant attended the offices of Mr. Gott in Anne Arundel County with a sum of money with which to effect a settlement on behalf of Mr. Rogers. He was at that time acting for an in behalf of Mr. Rogers. While it may be true that he received some funds belonging to Rogers by mail from Mr. Gott, and thereafter deposited that sum in an account in the District of Columbia, it is the view of this Court that at the time the defendant appeared with the money in Anne Arundel County he had then formed or continued...