People v. Ersan, 47 N.Y.2d 781 (1979)

In a criminal usury case where the indictment alleges a “scheme or business” of making usurious loans, the defendant is entitled to particulars regarding that allegation to adequately prepare a defense.

Summary

Defendant was indicted for first-degree criminal usury, which requires proof that the usurious conduct was part of a “scheme or business.” The defendant requested particulars regarding the “scheme or business” allegation, but his motion was denied. At trial, the prosecution failed to prove the first-degree charge, and the jury was instructed on the lesser included offense of second-degree criminal usury. The New York Court of Appeals reversed the conviction, holding that the defendant was entitled to particulars regarding the “scheme or business” allegation to adequately prepare his defense, particularly given the significant difference between defending against a single usurious transaction and a broader charge of loansharking.

Facts

The defendant was indicted on one count of criminal usury in the first degree. The indictment stemmed from a loan made to Frank Starace. First-degree criminal usury requires proof that the actor’s conduct was part of a scheme or business of making or collecting usurious loans. The defendant moved for particulars of the “scheme or business” allegation in the indictment.

Procedural History

The trial court denied the defendant’s motion for particulars. The jury was instructed on the lesser included offense of second-degree criminal usury after the prosecution failed to prove the first-degree charge. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed the order of the Appellate Division and dismissed the indictment, without prejudice to the People seeking leave to resubmit a charge of criminal usury in the second degree.

Issue(s)

Whether a defendant charged with first-degree criminal usury, based on an alleged “scheme or business” of making usurious loans, is entitled to particulars regarding the “scheme or business” allegation to adequately prepare a defense.

Holding

Yes, because the defendant needs to know what he would be called upon to defend against. The court reasoned that defending against a single usurious transaction is significantly different from defending against the broader charge of loansharking, making particulars necessary for a fair trial.

Court’s Reasoning

The Court of Appeals held that the defendant was entitled to particulars regarding the “scheme or business” allegation in the indictment. The court reasoned that even if the indictment sufficiently particularized the one loan made to Frank Starace, the defendant was entitled to particulars as to the “scheme or business” allegation to know what he would be called upon to defend against. The court emphasized the significant difference between defending a single usurious transaction and defending against the broader charge of loansharking. The court noted the prosecutor’s references to the broader charge, even though it could not be proved, further prejudiced the defendant. The court found the People’s argument that the defendant was not prejudiced because only the second-degree offense was charged to the jury unavailing, stating, “The argument answers itself.” The court also dismissed the People’s argument that the defendant was not entitled to particulars because his motion did not allege that he could not adequately prepare his defense without such information, as this argument was not raised in opposing the application, nor did the motion judge deny the request for particulars on that ground. The court cited People v. Iannone, 45 N.Y.2d 589, in support of the defendant’s right to particulars in such a case. The court stated that, in a case such as this, the defendant needs to know what the government is claiming regarding the larger scheme, not just the specific instance for which he is charged. Without this information, the defendant cannot properly prepare a defense.