19 A.D.2d 620 | N.Y. App. Div. | 1963
Judgment of conviction for grand larceny in the first degree rendered January 27, 1961 and sentencing defendant to a term of 5 to 10 years, as a prior felony offender, unanimously reversed, on the law and the facts, and the indictment dismissed. A combination of circumstances dictate this disposition. The proof of defendant’s culpability is insufficient to establish reliance by the money lenders on the defendant’s representations that he was the owner of the automobiles securing the series of chattel mortgages. Since it was evident that defendant was mortgaging his (corporation’s) working inventory it was unlikely that he would be capable of making the extraordinarily large payments per week on these high-interest short-term loans, except out of the proceeds of sales of the very automobiles mortgaged to the lenders. The absence of reliance is further strengthened by the loan of a large sum by the lenders to defendant during this period without effective or additional collateral. Apart from the indictment and the particular false pretense larcenies charged in it, the thrust of the prosecution in the proof and in argument was that defendant had sold the mortgaged automobiles after obtaining the loans. In that respect, defendant was guilty of a crime quite distinct from larceny by false pretenses, namely, disposing of mortgaged property in violation of section 940 of the Penal Law, a misdemeanor. In ordinary circumstances this would not present any problem, but because of the variance in the indictment, the difficulties in establishing reliance by the complaining witnesses on the alleged false pretenses of defendant, and the general tactics of the trial assistant in portraying defendant as capable of a whole catalog of misdeeds, this created confusion in the trial as to the precise offenses for which defendant was being tried and, on the proof, might be justly convicted. The confusion was further compounded by the stress in the case on defendant’s alleged misrepresentation as to the legal effect of the MV-50 forms which he deposited with the lenders. He is supposed to have told the lenders and their lawyer that retention .by the lenders of these forms would prevent him from disposing of the automobiles without their consent. At best, this was a misrepresentation of law rather than of fact, and while such a misrepresentation might have deceived an ignorant layman it is difficult -to accept such a misrepresentation as having been made or supporting reliance when made by a layman to a lawyer. In any event, this was not a misrepresentation upon which the indictment depended, but the role it played in the trial was great. Apart from the merits with respect to defendant’s culpability there was a serious variance upon the trial -between the proof and the indictment. The Assistant District Attorney made no attempt to obtain relief under section 293 of the Code of Criminal Procedure. This variance related to a description of the misrepresentations upon which the prosecution rested, as distinguished merely from references to the time and place or identity of persons involved (compare People v. Bromwich, 200 N. Y. 385 -with People v. Lamm, 292 N. Y. 224).
