People v. AlfaroPeople v. Alfaro
Lead Opinion
OPINION OF THE COURT
Defendant appeals from a judgment of the Supreme Court, Queens County (
Preliminarily, we question whether the issue is properly before us as a purported error of law. Generally, a defendant is precluded from raising a claim of repugnancy on appeal absent appropriate protest in the trial court (People v Satloff,
The dissenters are of the view that no protest could be registered to the Trial Judge’s action (cf. People v Pastore,
In People v Pugh (
It is true that, at one time, the United States Court of Appeals for the Second Circuit mandated consistency in such circumstances (United States v Maybury, 274 F2d 899). That rule, however, was adopted over the disagreement of Judge Learned Hand who protested that exculpating a defendant was an inappropriate method for preventing “errors in judicial dialectic” (supra, at p 908 [Hand, J., dissenting in part and concurring in part]) and was expressly rejected by this court in People v Pugh (
Nor are the verdicts impermissibly repugnant in the accepted sense. Such a repugnancy exists where the crimes contain identical elements (see, People v Tucker,
In creating the crime of insurance fraud, the Legislature and the Governor obviously did not believe that it and the crime of larceny contained identical elements (see, Insurance Law § 38; Governor’s approval memorandum, 1981 McKinney’s Session Laws of NY, at 2617-2618) and the statutory language itself shows this to be so. Larceny requires a finding of an “intent to deprive another of property or to appropriate the same” and a wrongful taking, obtaining or withholding of property from its owner (Penal Law § 155.05 [1]). On the other hand, insurance fraud requires a finding that the defendant “knowingly and with intent to defraud presents * * * any written statement as part of, or in support of, an application for the issuance of * * * a claim for payment or other benefit pursuant to an insurance policy” (Penal Law § 176.05).
There is an additional explanation for the verdict: perhaps the Trial Judge may have decided that pyramiding of charges was inappropriate and acted out of a sense of mercy. Such a rough sense of justice is legally improper, but it cannot, of course, be challenged by the People through the appellate process. Like Judge Hand, we do not think that two wrongs equal a right to exculpation on all counts in order to prevent “errors in judicial dialectic” (United States v Maybury, 274 F2d 899, 908, supra [Hand, J., dissenting in part and concurring in part]; see, People v Pastore,
There is no merit to any of the other arguments. The judgment should be affirmed.
Notes
In People v Salemmo (
Dissenting Opinion
(dissenting). The primary issue presented by this appeal is whether defendant’s conviction for insurance fraud in the third degree (Penal Law § 176.10), rendered after a nonjury trial, is repugnant with his simultaneous acquittal of attempted petit larceny (Penal Law §§ 155.25, 110.00). The majority is of the opinion that the verdicts are not repugnant. Having reviewed the law concerning repugnant and inconsistent verdicts, I conclude, however, that the verdicts are indeed repugnant and, accordingly, vote to reverse the judgment appealed from and to dismiss the indictment.
The charges against defendant Richard Alfaro arise out of a rather ingenious scheme concocted by his codefendant, David G. Hirsch, the purpose of which was to receive double recovery for property damage sustained in a single accident to a Rolls Royce automobile owned by Hirsch. On February 24, 1981, Hirsch,
Sometime after the accident, the Rolls Royce was transported to Alfaro’s collision body repair shop in Jackson Heights, Queens County, for repairs. According to Alfaro, he repaired the damaged vehicle to the extent necessary to make it operable without using any new parts, and completed the work in July 1981. Alfaro received $10,000 from Hirsch for his repair work on the vehicle. Neither Alfaro nor Hirsch was able to produce a copy of the repair bill or a certificate of completion for the repairs. At trial, Alfaro explained that he did not issue a certificate of completion in this case because he never reached an agreement with Hirsch’s insurer.
On or about May 27, 1981, while the necessary repairs on his Rolls Royce were being performed, Hirsch canceled his automobile insurance policy with Liberty Mutual, even though it was not due to expire until January 21, 1982, and the policy premium had not been increased. Hirsch then applied for a new insurance policy with the Metropolitan Property Insurance Company (hereinafter Metropolitan). In processing Hirsch’s application, Metropolitan authorized Careo, an automobile inspection organization, to conduct a visual inspection of Hirsch’s automobile. The inspection was performed by Thomas DiBlasi on behalf of Careo at Alfaro’s collision repair shop in July 1981. The written report filed by DiBlasi following his alleged inspection indicated that the Rolls Royce was in good physical condition with a mileage reading 22,312 miles. At trial, however, DiBlasi admitted that he never actually saw the Rolls Royce during his July 1981 inspection. Apparently, DiBlasi filled out the Careo inspection form based on photographs of the vehicle as
On December 8, 1981, Hirsch’s Rolls Royce was allegedly involved in a second “accident”. According to the evidence presented by defendants, on that date Hirsch was traveling on Northern Boulevard in Queens County when an unidentified vehicle forced him off the roadway and into a concrete stanchion which supported an overhead extension of the Grand Central Parkway. Hirsch’s vehicle again sustained extensive front-end damage as well as a broken windshield and some rear-end damage. A police officer who was flagged down by Hirsch after the accident occurred observed the damaged vehicle up against the concrete stanchion. He also noticed that the car was not running when he arrived. A short time later, Hirsch telephoned Alfaro’s shop and Alfaro, accompanied by one of his employees, responded to the accident site with a tow truck. The damaged vehicle was later transported to Alfaro’s collision shop.
On the date of the second “accident”, someone contacted Metropolitan on behalf of Hirsch and made a claim for the collision damage to the Rolls Royce. Thereafter, Hirsch supplied Metropolitan with a written accident report, and an MV 104 report which had been filed by him with the New York State Department of Motor Vehicles. Hirsch also made an oral statement via telephone in support of his claim to a Metropolitan representative.
On December 23, 1981, a Metropolitan field appraiser, John Kelly, was assigned to inspect Hirsch’s damaged Rolls Royce at Alfaro’s premises. During his inspection, Kelly recorded the vehicle’s identification number and took four photographs of the vehicle. According to Kelly, Alfaro read the vehicle’s odometer and informed him that the registered mileage was 22,312 miles. Kelly was unable to complete the appraisal because he did not have a price list for Rolls Royce parts. Alfaro agreed to obtain the necessary information and contact Kelly. Kelly twice contacted Alfaro after the inspection for the price list but on both occasions, Alfaro said he had not yet obtained the list. Due to the absence of this information, Kelly never made a final estimate of the damage.
Sometime during December 1981, Ann Colleran, the Metropolitan claims representative assigned to handle Hirsch’s claim, became suspicious that the Rolls Royce had been involved in a prior accident. Because of her suspicions, Colleran, unbeknownst
In 1982, Alfaro and Hirsch were both indicted on charges of insurance fraud in the first degree (Penal Law § 176.20) and attempted grand larceny in the second degree (Penal Law §§ 155.35, 110.00). The indictment essentially alleged that during the period from February 24, 1981 through January 31, 1982, the defendants, while acting in concert with one another committed a fraudulent insurance act and attempted to wrongfully obtain and/or steal property, namely, money, from Metropolitan in excess of $1,500. Alfaro and Hirsch were jointly tried before the court without a jury. Following the trial, the court reserved decision and subsequently rendered its verdict in the form of a memorandum decision in which it concluded, in the first instance, that based on the evidence adduced at trial “there was in fact only one accident and that the alleged second accident was actually staged by defendants Hirsch and Alfaro for the purpose of making a second insurance claim” (
At the outset, I am constrained to note that, although not urged by the People, following the trial court’s rendition of its verdicts, Alfaro did not register any protest to the verdict as to him on the basis of repugnancy and thus, under the dictates of People v Stahl (
In People v Tucker (
On this point, it is significant to note that there is some authority to support the position that a much broader standard of review than that set forth above should apply when reviewing a nonjury verdict on repugnancy grounds. Such a broader standard would permit a review of the entire record in the case to determine whether the judge’s verdict was factually as well as legally consistent. For example, in United States v Maybury (274 F2d 899) the United States Court of Appeals for the Second Circuit, in a majority opinion authored by Judge Friendly, made the point that the policy consideration behind the judiciary’s reluctance to disturb a seemingly inconsistent jury verdict does not apply to a verdict rendered by a judge, such policy consideration being that the jury serves as arbiter of the community whose prerogative it is to reach a compromise verdict in order to serve the interest of the community. Similarly, the requirement of unanimity of a jury verdict creates a need for compromise and the jury should be allowed to protect against the excessive zeal of prosecutors by exercising lenity (United States v Maybury, supra, at p 903). Judge Friendly concluded (United States v Maybury, supra, at p 903) that: “[N]one of these considerations is fairly applicable to the trial of a criminal case before a judge. There is no ‘arbitral’ element in such a trial. While the historic position of the jury affords ample ground for tolerating the jury’s assumption of the power to insure lenity, the judge is hardly the ‘voice of the country’, even when he sits in the jury’s place * * * We do not believe we would enhance respect for law or for the courts by recognizing for a judge the same right to indulge in ‘vagaries’ in the disposition of criminal charges that, for historic reasons, has been granted the jury * * * Since we find no experience to justify approval of an inconsistent judgment when a criminal case is tried to a judge, we think logic should prevail”. With this premise, the Maybury court reversed a conviction on one count of a two-count indictment on the basis that in view of the evidence in the record, an acquittal on the second count was
Several recent cases have expressed disagreement with the May bury rationale. For example, in Harris v Rivera (
I agree with the latter view insofar as I acknowledge the prerogative of a trial judge, sitting as trier of fact, to render factually inconsistent verdicts, whether such verdicts be a result of an exercise of lenity or due to an unarticulated doubt harbored by the trial judge in regard to the defendant’s guilt. In light of this premise, it would accordingly be inappropriate for an appellate court, presented with a claim of repugnant or inconsistent bench trial verdicts, to engage in an analysis and review of the entire record so as to consider all the evidence and determine the underlying rationale of the judge’s decision. The Court of Appeals in People v Tucker (
Applying this standard of review to the case at bar, I conclude, contrary to the majority, that the rendered verdicts are repugnant. Insurance fraud in the third degree is defined in Penal Law § 176.10 as follows: “A person is guilty of insurance fraud in the third degree when he commits a fraudulent insurance act”. The term “fraudulent insurance act” is defined, in relevant part, in Penal Law § 176.05 as follows: “A fraudulent insurance act is committed by any person who, knowingly and with intent to defraud presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by an insurer
The term “larceny” is defined, in pertinent part, in Penal Law § 155.05:
“1. A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof
“2. Larceny includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subdivision one of this section, committed in any of the following ways:
“(a) By conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses” (emphasis added).
“Petit larceny” is defined in Penal Law § 155.25 as: “A person is guilty of petit larceny when he steals property”.
Reviewing the elements of these crimes, there does not appear to be any logical way that a person could engage in insurance fraud by knowingly and with intent to defraud submitting papers in support of a false claim for payment, without at the same time attempting to commit a larceny. That is, when one submits false papers in support of a claim for payment for his own benefit or that of another, he is concomitantly attempting to commit a larceny by wrongfully obtaining property by false pretenses from the insurer. As a result, in preparing or causing to be prepared false papers in support of Hirsch’s claim, Alfaro would have been an accessory to Hirsch in the latter’s attempt to take or obtain money from Metropolitan and, therefore, guilty of attempted larceny as well as insurance fraud. The People, and the majority, take the position that the element of intent in the crimes of larceny and insurance fraud is completely different; that is, while the larceny provisions address the wrongful taking of property with the intent to deprive someone of that property, the essence of insurance fraud is the knowing and intentional filing of a false written instrument as part of a claim of insurance. While I acknowledge that the statutory definition of a fraudulent insurance act (Penal Law § 176.05) does not specifically state that the purpose of submitting false papers in support
In this vein, we note that the case of People v Pisano (
In conclusion, I acknowledge that the trial court apparently sought to exercise leniency towards Alfaro in rendering these verdicts. While the exercise of mercy is within the prerogative of the trier of fact, this inherent power cannot be utilized at the expense of rendering repugnant verdicts. Moreover, I note that I
Mollen, P. J., and O’Connor, J., concur with Titone, J.; Eiber, J., dissents and votes to reverse the judgment appealed from, on the law, and to dismiss the indictment, with an opinion, in which Lawrence, J., concurs.
Judgment of the Supreme Court, Queens County, rendered December 15, 1983, affirmed.
. Insurance fraud in the first degree (Penal Law § 176.20) and attempted grand larceny in the second degree (Penal Law § 155.35) contain elements requiring that the pecuniary value of the property involved be in excess of $1,500.
. Harris v Rivera (