People v. Bloomfield

844 N.E.2d 296, 6 N.Y.3d 165
New York Court of Appeals·Decided February 14, 2006·Published·Cited by 10 cases

Opinion

[167]*167OPINION OF THE COURT

ClPARICK, J.

The issue presented by this appeal is whether there is sufficient evidence that fraudulent letters kept in the files of an enterprise’s legal counsel, rather than at the company’s headquarters, were “[b]usiness record[s]” as defined by Penal Law § 175.00 (2). We conclude that the location where a document is maintained is merely a factor, not determinative, of its status as a business record under the statute, and that the People presented legally sufficient evidence to support the conclusion reached by the trier of fact.

In 1992, three brokers—the Westfield partners—engaged in fraudulent securities transactions. The scheme involved the sale of unregistered stock pursuant to Regulation S of the Securities Act of 1933. Regulation S securities generally sell at discounted prices since they may only be held by non-United States citizens who do not reside within the country. The Westfield partners, all United States citizens residing in the United States, devised a plan to buy and sell Regulation S securities by acting as foreigners. To facilitate these transactions, the Westfield partners contacted Andrew Warren, a London solicitor at the firm Talbot Creggy, located at 38 Queen Anne Street, to set up offshore shell corporations to appear as if they were owned by non-United States persons. Warren, at the request of the West-field partners, established approximately 20 shell corporations and hired a management company, Channel Islands & International Law Trust Company, Ltd. (Management Company), located on the Isle of Jersey. Warren advised the Westfield partners that he would relay all stock transfer instructions to the Management Company and originally used the 38 Queen Anne Street address as the address for each of the shell corporations.

In 1994, after the Securities and Exchange Commission (SEC) had commenced an investigation into the Regulation S transactions, Warren sought advice on how to handle the situation from his senior partner, Stuart Creggy. In exchange for $23,000, Creggy offered to have a Liberian diplomat pose as the owner of the shell companies. Creggy, in turn contacted Harry J.E Bloomfield, a Canadian lawyer, to retain the Liberian diplomat, Charles Wilson.

Wilson served as First Secretary and Consul at the Liberian Embassy in Ottawa. Due to the civil war in Liberia, Wilson’s income was cut off. Communication with Liberia was also largely [168]*168disrupted and the embassy was forced to close. Wilson, who was ill, remained in Canada and sought refugee status along with his wife and children. Bloomfield served as Honorary Liberian Consul and frequently helped Wilson financially. Bloomfield referred to Wilson as being in a “constant state of penury” and used his good will and gifts of money to periodically influence Wilson for assistance. Wilson gave Bloomfield a copy of his passport to open an offshore bank account and signed various questionable documents in exchange for the support Bloomfield gave Wilson and his family.

In November 1994, Bloomfield sent Wilson a package with 16 letters to sign, each addressed to the directors of the 16 West-field partners’ shell corporations. Each letter read as follows:

“Dear Sirs
“This is to confirm in my capacity as beneficial owner of the share capital of this Company that you should at all times implement my directions relating to the affairs and conduct of the Company business and undertaking or such other person as I may from time to time nominate in writing.
“Yours faithfully
“Charles HNE Wilson.”

Upon receipt of the letters, Wilson lay the letters aside until Bloomfield called a week or two later and assured him that they were “perfectly correct.” In response, Wilson sent Bloomfield a letter stating that he was apprehensive about signing the letters and reminded Bloomfield that the latter had promised “never [to] mislead [him] nor talk [him] into anything illegal.” Bloomfield returned the letter and envelope and wrote a note on it stating “Charles—attorney Creggy assures me that these are regular business accounts. I know him and trust him. Be assured that we will always try to protect your position.” Bloomfield continued to call Wilson until he ultimately signed and returned the letters. The letters were then forwarded to Creggy in London.

Meanwhile, the Management Company had been repeatedly contacting Warren to learn the identity of the true owner. Initially Warren ignored the requests as to the identity of the owner, but in June 1995 he finally responded to the inquiry with a fax indicating that Wilson was the beneficial owner of the 16 corporations as well as others.

[169]*169The SEC investigation continued. Warren responded to its inquiry by referring the request for information to England’s Law Society “for their opinion as to disclosure on matters which touch upon professional confidence and privilege.” He never responded further. The SEC ultimately referred the matter to the British regulatory agency, the Department of Trade and Industry (DTI) who in turn contacted Warren. In response, Warren supplied DTI with various files maintained in his office for each company which were then returned. These files did not contain the letters in question. DTI thereafter learned of Wilson’s identity directly from the Management Company. After obtaining this information, the British police executed a search warrant for 38 Queen Anne Street where they seized documents. The officers questioned Creggy who denied knowledge of the subject companies and referred them to Warren. The officers then confronted Warren who handed over various documents. The documents taken from the office, in part, consisted of the files given to the DTI and an additional “working notes” file from Warren’s secretary’s office which contained, among other things, copies of the 16 executed Wilson ownership letters as well as unsigned draft copies. As a result of the investigation, Warren was extradited to the United States where he pleaded guilty to attempted enterprise corruption.

On April 3, 2001, Bloomfield and Creggy were each indicted on one count of conspiracy in the fifth degree in violation of Penal Law § 105.05 (1); 17 counts of falsifying business records in the first degree in violation of Penal Law § 175.10; two counts of criminal possession of a forged instrument in the first degree in violation of Penal Law § 170.30; and one count of criminal possession of forgery devices in violation of Penal Law § 170.40.

Supreme Court dismissed four counts of the indictment, which left 16 counts of falsifying business records in the first degree (E felonies) and one count of conspiracy in the fifth degree, all based upon the Wilson letters. Supreme Court rejected the argument, however, that the letters could not be business records since they were found in Warren’s office, not at the enterprise. A bench trial before a different justice followed and Creggy and Bloomfield were each found guilty of the remaining 17 counts. Each was sentenced to 500 hours of community service, a $6,000 fine and five years’ probation. On appeal, the Appellate Division unanimously reversed, on the law, and dismissed the indictment. A Judge of this Court granted leave to appeal and we now reverse.

[170]

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People v. Bloomfield, 844 N.E.2d 296, 6 N.Y.3d 165 (N.Y. 2006).

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