Opinion
March 5, 1984
Appeal by the People from an order of the Supreme Court, Queens County (Hentel, J.), 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 Penal of the Penal Law, states in relevant part: ¶ "1. A person is guilty of a scheme to defraud in the first degree when he (a) engages in a scheme constituting a systematic ongoing course of conduct with intent to * * * obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and (b) so obtains property from one or more of such persons. ¶ "2. In any prosecution under this section it shall be necessary to prove the identity of at least one person from whom the defendant so obtained property, but it shall not be necessary to prove the identity of any other intended victim." ¶ 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". Returning to section 190.65 Penal 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 (US Code, tit 18, § 1341) and contains parallel language (see Givens, Additional Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law, § 190.60, p. 143, 1983-1984 Pocket Part). Accordingly, the New York courts have found cases brought under the mail fraud section highly relevant to construction of this relatively new section (see People v Ford, 88 A.D.2d 859, 862; People v Jones, 117 Misc.2d 647, 649; People v Block Kleaver, 103 Misc.2d 758, 764; People v Lennon, 107 Misc.2d 329, 333; Givens, op. cit., p. 144). We find the Federal cases particularly instructive where the representation involved is designed to be misinterpreted, i.e., the misrepresentation is implied. ¶ "[A] scheme need not be fraudulent upon its face, and need not misrepresent any fact, because all that is necessary is that it be a scheme reasonably calculated to deceive persons of ordinary prudence and comprehension" ( Silverman v United States, 213 F.2d 405, cert. den. 348 U.S. 828). Defendant's scheme was reasonably calculated to deceive. The "pitch" contained deceitful statements, half truths, and concealed material facts. Solicitors misidentified themselves, implied that they were associated with the police department, concealed that they were not so associated, and implied that funds they solicited would aid the police department. "[T]he devising of a scheme for obtaining money or property by such statements or concealments is within the prohibition of the statute" ( Williams v United States, 368 F.2d 972, 975, cert. den. 386 U.S. 997; cf. United States v Blake, 488 F.2d 101; Linden v United States, 254 F.2d 560). "[T]he effect of the solicitations upon the recipients is a highly pertinent fact in determining whether the solicitations are of the nature charged" ( Linden v United States, supra, p. 566). Accordingly, the captious, misleading and deceptive nature of defendant's solicitations are evidenced by their effect on the merchants, who contributed in expectation of aiding the police department. ¶ We now turn to the issue of intent. Specific intent to defraud is the key element under section 190.65 Penal of the Penal Law, as it is under the mail fraud statute (see Givens, op. cit., p. 144). ¶ Fraudulent intent, as an element of the crime, is often not susceptible of proof by direct evidence. Most often, it must be inferred from circumstantial evidence adduced at trial. Defendant's knowledge of the misleading and deceptive nature of his solicitations, as well as deceptive practices employed by his solicitors, is highly probative on the issue of his intent. It is clear that defendant not only knew his solicitors used false names, but directed them to do so. One former employee testified that defendant was present when one of the solicitors identified himself over the telephone as a police officer. An undercover detective testified that defendant commented that it was "fine" if the solicitees thought they were contributing to the police or to the bullet proof vest fund. Defendant also received several checks made out to the bullet proof vest fund. In addition, defendant, who supervised solicitation from the "pitch", was fully aware that $50 ads would not result in a business card size ad, but instead would be one tenth that size, and placed on a tabloid size page with as many as 250 other "ads". In the face of such knowledge, the jury was more than justified in finding a scheme to defraud (see Rice v United States, 149 F.2d 601, 603; Linden v United States, 254 F.2d 560, 566, supra). We note that it was not necessary for defendant to own the "Police Officers Times" nor "mastermind" the scheme, in order to prove intent. The People presented sufficient evidence to show that he willfully participated "with knowledge of [the scheme's] fraudulent nature and with intent that these illicit objectives be achieved" (see United States v Price, 623 F.2d 587, 591, cert. den. 449 U.S. 1016). ¶ This is "not a situation where the proof in support of the verdict so clearly failed to come up to the statutory standard * * * as to warrant vacatur of the verdict by the trial court" (see People v Johnson, 77 A.D.2d 666, 667). The evidence was legally sufficient to establish that defendant engaged in a scheme intentionally designed to deceive 10 or more persons by implication, and that he received property from at least one intended and identified victim of that scheme. Accordingly, the order is reversed, defendant's motion denied, the verdict reinstated and the matter remitted to the Supreme Court, Queens County, for sentencing. Mollen, P.J., Lazer, Mangano and Brown, JJ., concur.