New York Law Review

Tag: False Instrument for Filing

  • People v. Mikuszewski, 73 N.Y.2d 407 (1989): Sufficiency of Evidence for Scheme to Defraud and False Filing Charges

    People v. Mikuszewski, 73 N.Y.2d 407 (1989)

    Evidence presented to a grand jury is sufficient to indict if it establishes every element of the offense charged and the defendant’s commission of it, viewed most favorably to the People, but it must also demonstrate intent to defraud the requisite number of victims for a scheme to defraud charge.

    Summary

    Naneo Contracting Corp. and its vice-president, Mikuszewski, were indicted for fraudulent efforts to comply with minority business participation requirements in public works contracts. The Attorney-General alleged false representations regarding G.R. Trucking, a supposed minority-owned subcontractor. The Court of Appeals held that the evidence was sufficient to reinstate six counts related to offering a false instrument for filing, perjury, and making a false statement, but insufficient to support the scheme to defraud charge. The Court emphasized the necessity of proving intent to defraud ten or more persons, which was lacking in the evidence presented.

    Facts

    Naneo Corp. secured public works contracts contingent on allocating a percentage of work to State-approved Minority Business Enterprises (MBEs). Naneo Corp. represented that G.R. Trucking, owned by Gustave Roben, would fulfill this requirement. However, Roben was an employee of Naneo Corp., and G.R. Trucking was not an independent, State-approved MBE. Mikuszewski, as vice-president, allegedly made false representations in officially filed documents regarding G.R. Trucking’s status. This led to a criminal investigation and indictment against Mikuszewski and Naneo Corp.

    Procedural History

    The trial court dismissed nine counts against Mikuszewski and Naneo Corp. The Appellate Division affirmed the dismissals. Codefendant Roben pleaded guilty to a lesser offense. The People appealed to the Court of Appeals concerning seven of the dismissed counts against Naneo Corp. and Mikuszewski.

    Issue(s)

    1. Whether the Grand Jury evidence was legally sufficient to support the counts charging offering a false instrument for filing, perjury, and making an apparently sworn false statement.
    2. Whether the Grand Jury evidence was legally sufficient to support the count charging a scheme to defraud in the first degree.

    Holding

    1. Yes, because the evidence, viewed most favorably to the People, demonstrated that Mikuszewski, acting as vice-president of Naneo Corp., knew of the falsity in Roben’s affidavit and acted illegally with respect to it.
    2. No, because there was insufficient proof that the defendants intended to defraud or obtain property by false representations with respect to ten or more persons, as required by the scheme to defraud statute.

    Court’s Reasoning

    The Court emphasized that a Grand Jury may indict only if the evidence establishes every element of the offense and provides reasonable cause to believe the accused committed the offense. Regarding the false instrument, perjury, and false statement charges, the Court found sufficient evidence that Mikuszewski, as vice-president, knew of the falsity in Roben’s affidavit. The court noted Mikuszewski’s direct involvement in filling out forms related to G.R. Trucking’s MBE status and forwarding Roben’s affidavit, supporting an inference of knowledge. As for the scheme to defraud charge, the Court referenced the legislative history indicating that Penal Law §§ 190.60 and 190.65 were designed to prosecute consumer fraud schemes involving many victims defrauded of small amounts. The Court found a lack of evidence that the defendants intended to defraud ten or more persons of property, specifically noting that there was no proof other bidding contractors were defrauded. The Court stated, “In this case, while the People’s evidence before the Grand Jury may have been sufficient to establish that the one ‘person’ from whom property was actually obtained was the government or a few units of the government, there was absolutely no evidence that defendants made false representations to other bidding contractors…”

  • People v. Walsh, 67 N.Y.2d 747 (1986): Prosecution for Filing False Tax Returns Under Penal Law

    People v. Walsh, 67 N.Y.2d 747 (1986)

    A defendant can be prosecuted under the Penal Law for offering a false instrument for filing, even when the conduct involves filing a false sales and use tax return, because the Tax Law does not explicitly preclude such prosecution, and legislative intent supports allowing prosecution under either statute.

    Summary

    This case addresses whether a defendant who files a false sales and use tax return can be charged with offering a false instrument for filing under the Penal Law. The Court of Appeals held that such a prosecution is permissible. The Court distinguished its prior holding in People v. Valenza, which prevented larceny prosecution for failing to remit sales taxes, by noting that the Tax Law explicitly provides civil and criminal penalties for filing false returns. Absent legislative intent to exclude Penal Law prosecution for filing false tax returns, the general rule allowing prosecution under any applicable penal statute prevails.

    Facts

    The defendant was charged with violating Penal Law § 175.35 for filing an allegedly false sales and use tax return. The specific details of the false information on the return are not provided in this memorandum opinion, but the core issue revolved around the permissibility of using the Penal Law for such conduct.

    Procedural History

    The lower court’s decision was appealed to the Appellate Division, which ruled in favor of allowing the prosecution under the Penal Law. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether a person who files an allegedly false sales and use tax return can be prosecuted for offering a false instrument for filing in the first degree under Penal Law § 175.35, or whether such prosecution is precluded by the Tax Law.

    Holding

    Yes, because People v. Valenza only prohibits larceny prosecution for failure to remit sales taxes, not prosecution for filing false sales and use tax returns, and the legislature did not intend to exclude criminal sanctions for filing false returns.

    Court’s Reasoning

    The Court distinguished this case from People v. Valenza, 60 N.Y.2d 363, which held that failing to remit collected sales taxes could not be prosecuted as larceny by embezzlement. The Court in Valenza reasoned that the legislature intended to exclude criminal penalties under the Penal Law for failure to pay over sales tax, given the specific civil penalties provided in the Tax Law for that offense.

    However, the Court in Walsh emphasized that Tax Law former § 1145(b) *did* provide criminal penalties for filing a false sales or use tax return. Therefore, the rationale in Valenza did not apply to the act of filing a false return. The Court stated, “While excluding criminal penalties for failing to pay over sales tax, Tax Law former § 1145 (b) provided for criminal penalties for filing a false sales or use tax return. There being no legislative intent to exclude criminal sanctions for the latter activity, the general rule that a prosecution may be obtained under any penal statute proscribing certain conduct, notwithstanding that the penal statute overlaps with a more specific statute, applies in this situation”.

    The Court cited People v. Eboli, 34 N.Y.2d 281, 287; People v. Lubow, 29 N.Y.2d 58, 67; and People v. Bergerson, 17 N.Y.2d 398, 401, to support the general rule that a prosecution may proceed under any applicable penal statute, even if a more specific statute also covers the conduct, unless the legislature intended to exclude such prosecution. The court also noted a legislative amendment after Valenza indicated an overall intent to allow prosecutors the choice of proceeding under the Penal Law for criminal offenses also proscribed by the Tax Law.

  • People v. Bel Air Equipment Corp., 39 N.Y.2d 58 (1976): Defining “Instrument” in False Filing Cases

    People v. Bel Air Equipment Corp., 39 N.Y.2d 58 (1976)

    A standard State voucher submitted for payment is considered an “instrument” under Penal Law § 175.35, when it is used to make a fraudulent claim against the state.

    Summary

    This case addresses whether a standard State voucher used to claim relocation expenses is an “instrument” under New York Penal Law § 175.35, which prohibits offering a false instrument for filing. Bel Air Equipment Corp. and its president were convicted of this crime for submitting a falsified bill to the State Department of Transportation through a claimant, Rossini. The Court of Appeals affirmed the conviction, holding that the voucher, in effect a non-negotiable draft demanding payment, qualifies as an instrument because it was used in an attempt to defraud the state, the very mischief the statute aims to prevent.

    Facts

    Steve Rossini, whose business was displaced by state highway construction, was entitled to relocation expense reimbursement. The Department of Transportation required multiple bids for the moving services. James Macri, president of Bel Air Equipment Corp., submitted the lowest bid at $8,975, and was hired by Rossini. After the move, Macri instructed his project manager to create an itemized bill matching the bid amount, irrespective of actual costs. Rossini then submitted this bill, along with a standard State voucher, to the state for payment. State investigators, who had been monitoring the move, discovered substantial discrepancies between the submitted bill and the actual work performed.

    Procedural History

    Bel Air and Macri were indicted by the Grand Jury of Westchester County for attempted grand larceny, falsifying business records, and offering a false instrument for filing. They were convicted on all charges. The Appellate Division reversed the convictions for falsifying business records but affirmed the convictions for offering a false instrument for filing and attempted grand larceny. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether a standard State voucher constitutes an “instrument” within the meaning of Penal Law § 175.35, when it is submitted to a public office as part of a fraudulent claim for payment.

    Holding

    Yes, because the State voucher functions as a non-negotiable draft demanding payment and was used in an attempt to defraud the state, which is the exact harm the statute aims to prevent. The voucher misrepresented obligations allegedly owed by the State.

    Court’s Reasoning

    The court emphasized that the definition of “instrument” is context-dependent and not rigidly defined. The purpose of § 175.35 is to protect against the possibility that state officers might act on false documents filed with them in the belief that the documents are accurate. The court distinguished this case from People v. Sansanese and People v. Gottlieb, where a driver’s license application and a certificate of occupancy application, respectively, were deemed not to be instruments. The critical factor is whether the document carries the potential to cause the mischief the statute seeks to prevent. Here, the State voucher was a demand for payment containing false claims; had the state paid it, it would have been defrauded. The court stated: “When a claim is made that a particular document is not an instrument within the meaning of the statutory prohibition, the character and contents of the document must be closely analyzed… [T]he court must not only ascertain whether the particular document falls within the literal scope of the statute but also whether the document is of a character that the mischief the statute seeks to prevent would ensue if the document were filed.” The court also held that the delivery of the vouchers to the Department of Transportation constituted a filing of the instrument, attributable to Macri and Bel Air, who intended to defraud the state.

  • People v. Gottlieb, 36 N.Y.2d 629 (1975): Defining ‘Written Instrument’ in False Filing Statutes

    People v. Gottlieb, 36 N.Y.2d 629 (1975)

    An application for a certificate of occupancy is not a “written instrument” within the meaning of Penal Law § 175.35, which prohibits offering a false instrument for filing.

    Summary

    The defendants were convicted of offering a false instrument for filing after submitting an application for a certificate of occupancy containing false information to the Yonkers Building Department. The New York Court of Appeals reversed the conviction, holding that the application was not a “written instrument” as the term is used in Penal Law § 175.35. The court reasoned that the statute’s scope is narrower than its predecessor and that the definition of “written instrument” should be narrowly construed, consistent with prior case law and legislative intent. The Court emphasized that a broader definition, such as that used in the context of forgery, would risk turning harmless misstatements into felonies.

    Facts

    The defendants submitted an “Application For Certificate of Occupancy” to the Building Department of the City of Yonkers for an apartment complex. The prosecution alleged that the application contained false information. The defendants were subsequently convicted of offering a false instrument for filing in the first degree, in violation of section 175.35 of the Penal Law.

    Procedural History

    The defendants were convicted at trial. The Appellate Division affirmed the convictions. The case then came before the New York Court of Appeals.

    Issue(s)

    Whether an application for a certificate of occupancy is a “written instrument” within the meaning of Penal Law § 175.35, which prohibits offering a false instrument for filing.

    Holding

    No, because the term “written instrument” in Penal Law § 175.35 should be narrowly construed, and an application for a certificate of occupancy does not fall within that narrow definition.

    Court’s Reasoning

    The court began by examining the legislative intent behind Penal Law § 175.35 and its predecessor, Penal Law § 2051. The court noted that while the older statute was broader, the revised statute was more limited in its application to “false instruments.” Referencing People v. Sansanese, 17 N.Y.2d 302, the court emphasized the narrow construction historically given to the term “instrument.” The court quoted Sansanese, stating that an instrument is typically defined as a “formal or legal document in writing, such as a contract, deed, will, bond, or lease.”

    The court rejected the argument that the broader definition of “written instrument” found in Penal Law Article 170 (relating to forgery) should apply. The court pointed out that the legislature specifically defined the term broadly for the purposes of Article 170 to expand the scope of forgery crimes, and applying that definition to Article 175 could lead to felony prosecutions for otherwise harmless misstatements. The court stated, “Penal responsibility * * * cannot be extended beyond the fair scope of the statutory mandate.”

    The court concluded that if the Legislature had intended the broader definition of Article 170 to apply to Article 175, it would have explicitly stated so. Therefore, the court reversed the Appellate Division’s order and dismissed the indictment.