A Kings Criminal Lawyer said that, this is a criminal action wherein defendant stands charged with Grand Larceny in the Second Degree, Falsifying Business Records, Conspiracy, and related sex crime, The indictment alleges that defendant and the co-defendant fraudulently obtained paid assignments from a Transit Authority (Authority) to procure independent medical examinations of plaintiffs who had sued the said transit authority. Defendant is charged with obtaining the transit authority vendor assignments for his company by using a fictitious name. The People say he thus concealed the fact that he had also been retained as outside counsel for in the defense of personal injury lawsuits a circumstance which, the People say, would have disqualified him from being paid to procure medical examinations.
A Kings Criminal Lawyer said that, defendant, an attorney, acted as outside counsel for the Transit Authority personal injury lawsuits against it. The People allege that defendant and co-defendant, the director of the Legal Support Unit (hereinafter “LSU”) at the Authority, formed a business entity. The indictment alleges that in April 2007, defendant, employing a pseudonym, submitted a business proposal on behalf of the entity to co-defendant in her capacity as director of the LSU. The proposal was approved and called for Advance to receive assignments from the LSU to schedule plaintiffs who had filed personal injury lawsuits against the Authority. In return, the entity would earn a fee of $400 per scheduled report.
In their Memorandum of Law in opposition to defendant’s motion to dismiss the indictment, the People add that defendant had a long-standing personal relationship with co-defendant. According to the indictment, defendant resided in the Brooklyn residence of co-defendant for 4 months in 2008. The overt acts listed under the Conspiracy count in the indictment include an allegation that defendant paid $242.54 to satisfy the bill of co-Defendant. There is also an allegation in the list of overt acts that defendant drafted and signed a $676.57 check for the billing account of co-defendant.
A Kings Sex Crime Lawyer said that, defendant argues that the indictment must be dismissed because there was no evidence of intent to defraud the Authority or that it has sustained any pecuniary loss as a result of defendant’s use of a fictitious name. More particularly, defendant contends that the crimes with which he has been charged require that he had the intent to defraud it, and that, while his conduct may have been deceptive, there is no evidence that he acted with an intent to “defraud.” Relatedly, defendant asserts that the People have not shown that the Authority sustained a loss, a necessary element of larceny. Defendant argues that the basis of his bargain with the Authority was for defendant to provide examinations and reports to it for a fee of $400 per examination plus report, that he did precisely that, and that defendant’s concealment of his identity did not have any effect on the bargain. Thus, he argues, the bank provided the Authority with the exact product agreed to and defendant was fairly paid in accordance with the agreement.
The issue in this case is whether the complainant received the bargained-for benefit.
The Court held that the elements required to establish larceny by false pretenses are: 1) criminal intent to deprive the owner of property; 2) making a false material representation; 3) obtaining the property of another; and 4) reliance by the victim upon the representation. Put another way, in order to establish larceny by false pretenses, the proof must show that the defendant obtained the property of another by means of an intentional false representation about a prior or existing material fact, upon which representation the victim relied in parting with the property.
Charges of larceny by false pretenses not infrequently originate in the context of a contractual relationship between the defendant and the complainant. Courts have struggled with the danger of applying criminal liability to conduct arising out of purely civil breaches of contract. “There is a very real danger that ordinary business transactions might be inhibited due to the risk of prosecuting one who is guilty of nothing more than a mere failure to pay his debts or an inability to perform contractual obligations.” “Criminal charges of false pretense are often instituted in reality to compel the payment of debt, and are easily fabricated.” “The law does not criminal every breach of contract, and will only call it a larceny when a party has effectively obtained property by a fraud to the detriment of the other party.”
The most pivotal inquiry in determining whether larceny occurred in a contractual setting is whether the complainant received the bargained-for benefit. “There would be no taking if the property received was what the alleged victim bargained for.” In order for the elements of larceny to be met, there must be a taking. If an owner consents to part with the property in exchange for a received benefit, there is no taking and no larceny.
It has been held that the assumption of an obligation under a contract cannot be the subject of larceny. In a case, the defendant induced the complainant to sign a lease for a hotel, representing that it was a “respectable” hotel. The complainant relied on that representation, but after the lease was executed discovered the hotel was used for prostitution. The defendant’s misrepresentations induced the complainant to enter into the contract. The court held that the facts did not make out larceny by false pretenses.
“The objective which the defendant sought was the signing of a lease of real property then in existence; such money as was given by the complainant to the defendant was given pursuant to that written agreement and incidental thereto. The situation might be otherwise if the property were not in existence or if the defendant had no right to lease it to the complainant.”
In the instant case, the People have charged defendant with stealing all the money he received under the contract on the theory that the Authority would not have entered into the arrangement at all had defendant not misrepresented his identity. In the case laws provided above, the complainants undoubtedly would never have entered into the contracts had they not been deceived by the defendants’ false representations. But to fraudulently induce a party to enter into a contract does not constitute larceny. “If the owner intends to part with the property, and delivers the possession, there can be no larceny, although fraudulent means have been used to induce him to part with the goods.”
In this case, no evidence of injury or loss to the Authority was shown from which an intent to deprive the Authority of property could be inferred. Defendant produced the related reports that he was paid for. Contrary to the People’s claim that the product was tainted or failed to do what was claimed for it, the People have been unable to produce evidence to support that claim. Defendant did not misrepresent the nature or quality of the service he intended to, and did, provide. There is no showing that defendant intended “to get something for nothing,” or that injury to the Authority was a reasonably probable result of defendant’s use of a fictitious name.
The People argue that the previous relationship between the NYCTA and defendant as outside counsel, in addition to the personal relationship between defendant and co-defendant, so pervaded the process with conflicts of interest as to render the contractual commitment to perform the work a fraud. In particular, according to the prosecution, defendant’s role as the owner of a company involved with his role as defense counsel for the Authority in cases involving personal injury claims where the evidence is utilized. As such, the People argue, the authority did not receive the benefit bargained for because they did not agree to be provided by defendant’s conflicts of interest. Notwithstanding the People’s position that defendant’s involvement in procuring posed a threat to the integrity of critical evidence in the defense of the personal injury lawsuits, the Authority has not been able to specify how the alleged taint attributable to the Bank resulted in a loss to the Authority.
In summary, the elements required to establish larceny have not been met. There was no loss to the Authority and, consequently, no criminal intent to deprive the Authority of property may be inferred. While defendant’s falsehoods were indefensible and potentially the basis for a civil suit, they were not criminal.
In a case, the defendants, police officers, were charged with falsifying business records in the first and second degrees for failing to prepare and file required reports and for failing to follow NYPD procedures. The defendants argued that the evidence was insufficient to establish”intent to defraud.” The court held that, “[I]t is not necessary to show a property or pecuniary loss from the fraud, and, in this case, it is sufficient to show that the NYPD’s legitimate official actions and purposes were impeded.” The defendants’ conduct inhibited the Police Department’s ability to perform its duties and carry out its mission. The court noted that the inaccuracy of the records had ramifications beyond general business practices.
Given this precedent, the court does not agree with the view that defendant was not proved to have an “intent to defraud” sufficient to justify trial on the lesser second degree offense under the remaining Counts. However, there is a more fundamental issue involved which precludes prosecution of these lesser included offenses. Penal Law § 175.00(2) defines “business record” as “any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.”
In this case, neither the business proposal nor the W–9 form reflects a legal obligation of the Authority, as the claim forms. There is no evidence that the Authority was obligated to keep, maintain, and pay out money in reliance on the false information submitted by defendant. There is no view of the evidence which would support a finding that the business proposal and the W–9 form are documents that are kept or maintained by the Authority for the purpose of reflecting its own condition or activity.
“A person is guilty of offering a false instrument for filing in the first degree when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, he offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office, public servant, public authority or public benefit corporation.”
Accordingly, the court held that, defendant’s motion to dismiss is granted as to Count 1, Conspiracy in the Fifth Degree, charging an agreement to commit Grand Larceny in the Second Degree, and as to Counts 2 through 12, charging various degrees of Larceny. In addition, the motion to dismiss Counts 13 and 14, charging Falsifying Business Records in the First Degree, is granted. The motion to dismiss Counts 15 and 16 is denied.
If you are facing criminal charges, you will need the representation of a Kings Criminal Attorney and/or Kings Sex Crime Attorney, otherwise, you will not be able to defend your case properly. Call us at Stephen Bilkis and Associates.