People v. Cohen

Kimball, J.

The appeal is from the judgment of conviction rendered against the defendant on September 15, 1955 in the County Court of Monroe County, and from certain intermediate orders. The indictment upon which the defendant went to trial contained 9 counts. The first 3 counts related to a fire insurance loss near Harrisburg, Pennsylvania, on August 24, 1954. The last 6 counts related to a fire loss in a manufacturing plant in the city of Rochester on the 4th day of September, 1954. Counts 1, 4 and 7 charged violation of subdivision 1 of section 1202 of the Penal Law. Counts 2, 5 and 8 charged violation of subdivision 2 of section 1202 of the Penal Law and counts 3, 6 and 9 charged the crime of grand larceny in the first degree by false and fraudulent representations and pretenses under sections 1290 and 1294 of the Penal Law. The defendant was found guilty on all nine counts.

A demurrer was interposed to the original indictment. The court eliminated 2 of the original 11 counts. There was a motion by the. defendant to separately try the counts relating to the Harrisburg fire and the counts relating to the loss in the manufacturing plant. The motion was denied. We think there was no abuse of discretion in that regard. The motion for separate trials necessarily had to be decided upon the situation as it was at the time the motion was made. The court could not anticipate that, upon the trial, there would be evidence offered which was prejudicial and a position taken by the prosecution contrary to. that stated to the court upon the ¡motion for separate trials. We find no error in the disposition of the demurrer and the motion for separate trials.

A most careful examination and study has been made of the record in this case and a full consideration of the points of the respective parties. The testimony of over 90 witnesses was voluminous. The exhibits were very numerous. The trial consumed about 6 weeks.

There were errors of various degrees of importance during the course of the trial of which some might be said not to have prejudiced substantial rights of the appellant. There was testimony which does not impress us either as to its quality, relevancy or probative value in relation to the crimes for which the defendant was indicted and tried. As to some of the counts, although there was sufficient evidence to send the questions to the jury, we think the proof was far from compelling. There were some very close questions of fact. In reviewing this whole case, therefore, it is necessary to determine whether there were such serious errors that, in their absence, the jury might have reached a different verdict. A defendant is entitled to be tried for those crimes with which he was charged by the Grand Jury and none others. He is entitled to concise and precise instructions by the court to the jury so that the jury may not be left in doubt or be confused as to what issues they must pass upon. (People v. Ochs, 3 N Y 2d 54.) He is entitled, at all times, from his arraignment to the coming in of the verdict, to complete frankness on the part of the prosecution. Whether a defendant is convicted or acquitted is a consideration secondary to a scrupulous regard for all the rights afforded to one accused of crime. We have come to the conclusion that there were errors affecting the substantial rights of the defendant; that the presentation of the case was such that the jury could well have thought that they were passing upon the guilt or innocence of the defendant as to some crime not charged in the indictment; that upon the whole record, in all fairness and in the interests of justice, the appellant is entitled to a new trial. (Code Crim. Pro., § 527.)

The appellant is a Rochester man who was engaged in manufacturing under the name of Leco Manufacturing Co., Inc. He and one DeLorenzo had organized a corporation called Code Industries, Inc., to market an automobile accessory known as an audio speed informer. This appliance was made by Leco and sold by Code. There is considerable diversity in the proof as to how many of these units were manufactured from the fall of 1953 to July or August, 1954. The first three counts of the indictment relate solely to the loss or destruction of a quantity of these units which were being transported in a truck through Pennsylvania. Somewhere near Harrisburg there was a fire in the truck. Later the fire loss was adjusted by representatives of the insurance company and the defendant. The loss was paid. So far as the record shows, no complaint was ever made by the insurance company that the loss was not legitimate and the claim an invalid one. We, therefore, examine the first three counts of the indictment to ascertain what were the specific crimes charged by the Grand Jury.

The first count charges the presentation of a false and fraudulent claim in writing for the truck fire loss of August 24, 1954 by means of a false, fraudulent and fictitious invoice (1) as to the number of units purportedly lost and (2) false proof as to the cost and value per unit of the property purportedly lost. The second count charged subscription by the defendant of a false and fraudulent proof of loss in writing, again specifying the falsity as being in relation to (1) the number of units and (2) the cost and value per unit. The first two counts were pursuant to subdivisions 1 and 2 of section 1202 of the Penal Law. The third count charged grand larceny in the first degree by false representations and pretenses. Again the false representations were alleged to be in relation to the number of units and the cost or value per unit. Specifically, the third count charges that the defendant exaggerated his loss (1) by falsely claiming there were 4,012 units in the truck whereas (as the indictment alleges) there were not to exceed 2,094 such units; (2) by exaggerating the cost or value per unit by representing such cost or value to be $6.75 whereas, in fact, such cost or value per unit was $2. The amount of the larceny as alleged in the indictment was $18,112. The amount paid by the insurance company for the loss was $22,230. So that, the third count of the indictment, by its very wording and content, conceded that defendant had a legitimate loss and claim for $4,118.

Until the. opening of the case by the prosecution, there was no intimation that there was in the case any question of incendiarism on defendant’s part or conspiracy to burn the contents of the truck. Upon the argument of the demurrer, the assistant district attorney stated to the court: “ Now, we make no claim in this indictment of any question of arson here.” However, upon the opening, the prosecution informed the jury that the proof would show that the defendant entered into a deal with one Chartoff, an employee of defendant and the driver of the truck, to burn the cargo of units. Motions for a mistrial were denied. Thereafter, over the strenuous objections of the defendant, a great deal of testimony was taken from various witnesses for the People for the purpose of establishing the fact that the defendant entered into a conspiracy with Chartoff to burn the truck and that defendant was guilty of incendiarism in relation to the truck fire in Pennsylvania. It is familiar and ancient law that, ordinarily, upon the trial for one crime, proof of some other crime is not permissible. There are some exceptions (People v. Molineux, 168 N. Y. 264). Under the theory of the crimes charged in the first three counts of the indictment, we are not satisfied that such proof of conspiracy and incendiarism was admissible for any purpose.

It is conceded that nothing in regard to conspiracy or incendiarism in connection with the truck fire was ever brought to the attention of the Grand Jury which found the indictment. That Grand Jury could not have found the indictment upon any theory that the defendant was, himself, responsible for the loss. In each of the three counts the indictment particularizes the alleged false representations. Willful destruction is not alleged. It may be argued that under the first and second counts, particulars of the falsity need not be alleged. However, such particulars were alleged and we think the defendant was required to defend only as to those. As to the third or larceny count, no conviction may be had for the larceny by false pretenses unless the false pretenses proved have been alleged in the indictment. (Penal Law, § 1290-a; People v. Lobel, 298 N. Y. 243; People v. Karp, 298 N. Y. 213.) In order to convict under the third count, the jury had to find beyond a reasonable doubt, either that defendant falsely represented the number of units on the truck or falsely represented the cost or value per unit. In addition, it had to be found that the insurance company relied upon such false representations when it paid the money. It appears that one Ohappel was engaged by the representatives of the insurance company to count and determine the number of units destroyed or damaged and that the appellant had no part therein; that after the count, the adjusters for the parties agreed upon the number. Little or no reliance was placed upon the invoice for the cargo. As to the unit value or cost, the insurance company made a cost analysis from defendant’s books and records. The People’s witnesses fixed the value or cost per unit in excess of the figure finally agreed upon by the adjusters. The People claimed misrepresentation by reason of a book valuation of $2 for tax purposes. A finding of misrepresentation as to the value or cost per unit was against the weight of evidence. As to the second count, it is undisputed that the defendant signed the proof of loss only after the adjusters had agreed upon the loss arid the amount to be paid. The statement of loss attached to the proof of loss was prepared by the insurance company’s adjuster who also prepared the proof of loss. It is difficult to see how the defendant could be said to have subscribed a knowingly false proof of loss with intent that it be presented to the insurance company and used in support of his claim. After the adjusters had exhaustively investigated all phases of the loss and had discussed the-figures and had compromised the loss, the signing of the formal proof of loss by the defendant was a mere formality and so considered by the insurance company’s adjuster.

The last six counts of the indictment had to do with a loss caused by water, under fire policies carried by the defendant’s companies as a result of a fire on September 4, 1954 in the premises used by defendant’s landlord on the floor above that occupied by the defendant. There were two insurance companies so that there are two counts charging the presentation of a false claim (Penal Law, § 1202, subd. 1); two charging subscription of a false and fraudulent proof of loss (Penal Law, § 1202, subd. 2) and two counts of grand larceny by false pretenses (Penal Law, §§ 1290, 1294). In these counts the defendant was not charged with the crimes of feloniously destroying insured property but the specification of false pretense in counts 6 and 9 was that the defendant falsely represented that the water damage was caused by the fire on the floor above whereas, subsequent to the fire, the defendant himself damaged the insured property.

It is not necessary here to discuss the evidence as to the last six counts. If it was established that the defendant himself caused the damage, then the question of amounts and values of the property was unimportant. There was much testimony on that point. If the defendant feloniously damaged or destroyed the property and, as it alleged in the indictment, there was no damage caused by the fire, the defendant was entitled to recover nothing. The only proof necessary by the People as to value would be that required to prove grand larceny.

Whether the evidence was sufficient to convict under the last six counts need not be considered. The warehouse fire in September had no relation to nor connection with the truck fire in August. No claim was made that the defendant was in any way involved in the fire which originated in the premises of the defendant’s landlord. Over the objections of the defendant, the People were allowed to introduce the evidence which they claimed showed the defendant to be the instigator of the truck fire. As to the last six counts, this was making proof of the defendant’s guilt of an independent crime. Such proof comes within no exception stated in People v. Molineux (supra) and we know of no rule nor have we been cited to any authority which permits such proof. Had the last six counts been tried separately, the reception of such evidence would have required a reversal, out of hand. We think a reversal of conviction under the last six counts is required in this case. If the People insisted upon trying the warehouse counts with the truck counts, then they should have known that the evidence relating to the alleged conspiracy and burning of the truck would certainly be inadmissible on the trial of the last six counts. The court’s charge is searched in vain to find any instruction to the jury as to the arson testimony as it related to or did not relate to the warehouse counts. If there was any doubt in the minds of the jurors as to the defendant’s guilt under the last six counts, such doubt would easily be removed from the minds of laymen if they were satisfied that the .defendant and Chartoff were guilty of engineering the truck fire. The respondent takes the position that there being some similarity between intentional destruction by fire and intentional destruction by water, the evidence of arson or conspiracy was competent on intent or motive under the last six counts. People v. Dales (309 N. Y. 97) is cited. That case is not authority for the respondent’s position. The defendant was not charged with nor was being tried for either intentional destruction of property by fire or for intentional destruction of property by water. The crimes charged in the indictment are false claims and larceny by false pretenses. As Judge Fuld said in the Dales case (supra, p. 101): “ When evidence of other crimes has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged, it is excluded.” The error in receiving the arson or conspiracy evidence was most prejudicial and requires reversal.

The charge to the jury failed to clearly define the issues to be determined by the jury. Some portions were inconsistent with others and certain instructions were contrary to law. In charging as to the first count, the jury was instructed that there were three fraudulent acts, one of which was a set fire. This was not before the Grand Jury nor set out in the indictment. However, the jury was told that: “ Should you reach the conclusion that the defendant participated in the arrangement of the fire, then, of course, your problem would not be too difficult with regard to the others.” Was the jury being told that if they found the defendant guilty of participation in the truck fire, they should have little difficulty in finding him guilty of claiming false numbers of units and false value or cost per unit? If so, it was error. Still referring to the first count, the court said that there was no arson charge in the indictment ; that the testimony in relation thereto could be considered upon the issues but that the jury were “by no means to reach a conclusion principally or find any small part of guilt upon that count or the next two following counts, merely because you feel that the defendant may have been involved in the arson ”. However, the charge continued as to the third or larceny count and the jury was told that “ the pleaded allegations with regard to the claimed false pretenses are substantially those to which I have referred in connection with the first count, (one) that the statement that the goods were destroyed by fire, a fire covered by the policy on August 24th, the People’s contention in that connection being that the fire was by the active connivance or participation of the defendant ”. The court thus added to the false pretenses alleged in the third or larceny count, a third one not pleaded, viz., that the truck fire was one participated in by the defendant. This was error in law. This court said in People v. Cooper (224 App. Div. 145, 146): “In an indictment for grand larceny by false pretenses it is necessary to allege the false pretense, to negate it and then to prove it as alleged.” Under the charge, even though the jury found no false representation as to number of units or value or cost per unit, it could have convicted of grand larceny by finding that the defendant was responsible for the truck fire.

Further emphasis was given to the testimony relating to the alleged conspiracy and truck fire when the court, at considerable length, charged the jury under section 399 of the Code of Criminal Procedure. The corroboration of an accomplice in order to convict a defendant of the crime for which he was charged was not in the case at all. There was no claim or intimation that the defendant had an accomplice in any of the crimes charged in the nine counts in the indictment. The court must have been under the impression that the defendant was being tried for participation in the burning of the truck. Since the only crime which had been called to the jury’s attention involving an accomplice, was that of conspiracy or arson, the instruction was tantamount to telling the jury they could not find defendant guilty of conspiracy or incendiarism on the testimony of his alleged accomplice Chartoff, unless it was corroborated. The instruction was general. The jury was not told that there were no accomplices as to any crime charged in the indictment. The jury could have inferred that the law on the corroboration of an accomplice was to be applied in respect to the crimes charged. The instructions in relation to section 399 of the Code of Criminal Procedure were prejudicial.

The judgment of conviction should be reversed and a new trial had.