People v. ConroyPeople v. Conroy
The verdict convicting defendant of three larcenies from Evergreen Securities Fund, a fund managed by Martin Boelens—who also was convicted of various federal and state fraud crimes—of $5 million, $9.7 million and $13 million, was based on legally sufficient evidence and was not against the weight of the evidence. Boelens first met in late October or early November of 1999 with both William Zylka, the central player in the fraudulent scheme charged in the indictment, and defendant, a lawyer at a well-known law firm in Manhattan with expertise in corporate matters and sophisticated financial transactions. By that time, defendant had lost his partnership position at the firm, was earning much less than he had in prior years and was having financial difficulties. The jury heard compelling evidence, independent of Boelens, from which it reasonably could have concluded that defendant knew, even before the first meeting with Boelens, that Zylka was a virtually impecunious swindler and not the magnanimous billionaire he professed to be. Among other things, the jury heard evidence that Zylka had failed to repay defendant the substantial sums of money he had loaned to Zylka, in steadily decreasing amounts; evidence that defendant had swindled an elderly woman, Guna Munters, out of some $200,000 representing the proceeds of a refinancing of her home that she invested in a supposed shipping venture in Latvia that Zylka promised would be repaid, along with an immense, $5 million profit when the Latvian deal went through; evidence that defendant had falsely represented that Ms. Munters had been employed by an entity controlled by Zylka in letters defendant prepared in connection with another refinancing of her home arising out of a looming foreclosure caused by Zylka‘s failure to keep his promise to make the mortgage payments; evidence that defendant knew that Zylka had managed to persuade Ms. Munters to give him the $30,000 proceeds from the refinancing; and evidence that defendant represented Zylka in Zylka‘s unsuccessful efforts to borrow $1 million from a Russian man named Finkel on highly favorable terms (18% interest with the loan to be repaid after one year
With respect to the first theft, of $5 million, from Evergreen, there was a wealth of evidence from which the jury reasonably could have concluded that defendant knew that Zylka was seeking to steal $5 million from Evergreen by falsely representing that the value of the collateral being offered by Zylka to back the $120 million guarantee by a Zylka-controlled entity of Evergreen‘s obligations, which was worth only about $1 million, was worth the hundreds of millions of dollars that Zylka assured Boelens it was worth. That evidence included evidence from which the jury reasonably could have concluded that: (1) the collateral, a limestone property in Montana known as MGM Land, was not even owned by Zylka when he first claimed to own it, contrary to his representations that it had been in the ostensible Zylka trust structure for decades; (2) defendant, on account of his role in the negotiations with the actual owner of MGM that led to its acquisition by the Zylka entity issuing the guarantee, knew that it was worth, at most, little more than the $1 million Zylka agreed to pay to the owner; (3) defendant not only made a false representation to the owner that his law firm had already received the first installment payment (of $250,000) due to the owner from Zylka to induce the owner to transmit to defendant the stock certificates for MGM, but made that false representation for the purpose of advancing Zylka‘s scheme; (4) defendant knew that the $5 million “loan” that Evergreen was providing to MGM in exchange for the guarantee was not being used exclusively by MGM in mining operations (as was required by documents defendant drafted) but instead was being used in part to finance the acquisition of MGM for $1 million, the very asset that supposedly was so valuable as to constitute more than adequate collateral for the $120 million guarantee; (5) defendant well knew, contrary to Zylka‘s representations to Boelens, that he, defendant, was not the trustee of a Zylka family trust created by defendant that owned the limestone property; (6) defendant falsely assumed the role of a cautious trustee, not merely a lawyer, with his own decision-making authority over the potential deal with Evergreen, and thereby added an air of respectability and legitimacy that Zylka would not have had on his own; (7) defendant prepared two different escrow agreements for the $5 million, the one that Boelens received that made clear that Evergreen had an interest in the $5 million and the one submitted to defendant‘s law firm that made no mention of Evergreen and stated that the money would be
From this and other evidence, the jury reasonably could have concluded that defendant shared Zylka‘s larcenous intent and committed various acts that were intended to aid and did aid Zylka in the commission of a $5 million larceny by false pretenses from Evergreen. Although the assistance defendant provided to Zylka in the commission of the other two larcenies was less extensive, from all the evidence the jury reasonably could have determined that defendant continued to act with the requisite intent “to deprive another of property or to appropriate the same to himself or to a third person” (
The People‘s position at trial was that defendant was guilty of three of the larceny counts, the ones for which he was convicted, on either a false pretenses or an embezzlement theory of larceny (see
Defendant also contends that the larceny convictions should be reversed because the testimony of Boelens, whom the trial court found to be an accomplice as a matter of law, was not corroborated as required by
The court properly instructed the jury that it was not required to be unanimous as to whether defendant committed larceny by false pretenses or by embezzlement (see e.g. People v Ponnapula, 229 AD2d at 273), and we reject defendant‘s constitutional argument in this regard (see Schad v Arizona, 501 US 624, 630-645 [1991] [plurality opinion]; see also id. at 648-652 [Scalia, J., concurring]). In People v Mateo (2 NY3d 383, 406 [2004], cert denied 542 US 946 [2004]), the Court of Appeals rejected the claim that “due process requires that the command theory [of murder] be considered by the jury apart from the actual killer theory, and that the jury be unanimous on one theory or the other.” In so holding, the Court relied on New York‘s “long history of treating actual killers and commanders as moral equivalents” (id. at 408). The same moral equivalence obtains with respect to thieves who steal by false pretense and those who steal by embezzlement. Indeed, as the People point out, beginning in 1942 the Penal Law defined larceny as the wrongful taking, obtaining or withholding of property with the requisite larcenous intent “by any means whatever” (
Defendant‘s other complaint about the court‘s charge—that it was “confusing” in instructing the jurors that they did not have to be unanimous on the theory of larceny but were required to be unanimous that all the elements of a particular larceny had been proven beyond a reasonable doubt—is unpreserved as defendant voiced no objection on this ground; we decline to review it in the interest of justice. As an alternative holding, we reject this claim on the merits. The court‘s instructions made clear what the term “elements” meant, and the jury expressed no confusion on this score. Moreover, during the charge, the court instructed the jury that it also had to be unanimous with respect to “all the facts necessary to substantiate each element.” In isolation, this instruction is unclear, but on its face it imposes a burden on the prosecution, and it thus is not surprising that defendant did not object to it; nor does defendant complain about it on appeal. The court immediately went on to instruct the jury, as it did during the prosecutor‘s summation, that it had to be unanimous with respect to any particular false representation alleged by the prosecution. The prosecutor correctly opposed this instruction as an inaccurate statement of the law (see People v Mateo, 2 NY3d at 408-409). Accordingly, when the
The court properly exercised its discretion in admitting uncharged crime evidence—i.e., the evidence relating to Ms. Munters’ dealings with Zylka and Zylka‘s efforts to obtain a loan from Mr. Finkel—that was highly relevant to the critical issue of the extent of defendant‘s knowledge of Zylka‘s actual financial situation (see People v Alvino, 71 NY2d 233, 245 [1987]). The probative value of this evidence outweighed any prejudicial effect, which was minimized by the court‘s clear and repeated instructions to the jury explaining the proper use of the evidence.
The court also properly exercised its discretion in denying defendant‘s mistrial motion made on the basis of a remark made by the prosecutor at the end of the re-cross-examination of defendant, since the court‘s curative actions were sufficient to prevent any prejudice. Defendant‘s other claims of prosecutorial misconduct are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we reject these claims on the merits and find no basis for reversal.
Finally, defendant‘s challenge to the sufficiency of the evidence underlying the convictions for the two counts of tampering with physical evidence has merit. Although the evidence supports the conclusion that the two false documents at issue were created by defendant to protect Zylka from his creditors, there is no valid line of reasoning nor any permissible inferences to support the additional and necessary conclusion that defendant‘s conscious objective in creating either document was that it “be used or introduced in an official proceeding or a prospective official proceeding” (
(July 22, 2008)