“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.