People v. Lurie

249 A.D.2d 119, 673 N.Y.S.2d 60, 1998 N.Y. App. Div. LEXIS 4314
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 21, 1998
StatusPublished
Cited by6 cases

This text of 249 A.D.2d 119 (People v. Lurie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lurie, 249 A.D.2d 119, 673 N.Y.S.2d 60, 1998 N.Y. App. Div. LEXIS 4314 (N.Y. Ct. App. 1998).

Opinion

—Judgments, Supreme Court, New York County (Bonnie Wittner, J.), rendered April 25, 1995, convicting defendant Brett K. Lurie, after a jury trial, of eight counts of scheme to defraud in the first degree, nine counts of intentional real estate securities fraud, three counts of grand larceny in the second degree, three counts of grand larceny in the third degree, and offering a false instrument for filing in the first degree, and sentencing him to concurrent terms of 1 to 3 years on three of the scheme to defraud convictions (counts 1-3), and the real estate securities fraud, larceny and offering a false instrument for filing convictions, to run consecutively to concurrent terms of 1 to 3 years on the remaining five scheme to defraud convictions (counts 4-8), for an aggregate sentence of 2 to 6 years, and convicting B.K.L. Management, Inc. of five counts of scheme to defraud in the first degree, and imposing an aggregate fine of $50,000, unanimously affirmed.

Defendant Brett Lurie and his exclusively owned corporation B.K.L. Management, Inc. were criminally prosecuted by the New York State Attorney-General’s Office for engaging in a deliberate scheme to defraud the minority shareholders of five residential cooperative buildings (co-ops), which were sponsored and managed by the defendants. The People’s evidence established that between April 1989 and December 1990, the defendants and their agents defrauded the minority shareholders of the co-ops by obtaining their monthly maintenance payments, while simultaneously and secretly defaulting on their own financial obligations. Defendant Lurie systematically failed to make the payments on the mortgages underlying the five co-ops, failed to make the maintenance payments to the co-op for his unsold shares and failed to pay bills for water, oil and taxes. By October 1990, Lurie owed $1.8 million in mortgage, maintenance and other fees to the five co-ops. Despite this enormous debt, Lurie consistently paid himself a $15,000 monthly management fee from the co-op’s bank accounts, resulting in income to defendants of over $435,000.

The existence of these defaults was never disclosed to the minority shareholders in financial reports or at board meetings, despite the fact that Lurie, as majority shareholder, controlled each board. Defendants also failed to disclose the massive debt and perilous financial situation of each co-op to potential purchasers of co-op shares, either verbally or by [120]*120timely and accurate amendments to the cooperative offering plans. Several purchasers and minority shareholders testified at trial that they relied on the defendants’ or their agents’ misrepresentations of the co-ops’ financial strength in purchasing their shares, or in making their monthly maintenance payments. Although amendments disclosing the defaults were submitted by defendants to the Department of Law prior to most of these sales and payments, the purchasers and shareholders were unaware of this because the amendments had not yet been accepted for filing. Ultimately, foreclosure actions were commenced based on the defendants’ default on the mortgages for each of the five co-ops, and at least two of the co-ops are, or were, the subject of bankruptcy proceedings.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. In order to prove defendants’ guilt of scheme to defraud in the first degree under Penal Law § 190.65 (1) (b), the People were required to prove that defendants “engage [d] in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtain[ed] property with a value in excess of one thousand dollars from one or more such persons.” Similarly, General Business Law § 352-c (5) (Martin Act; General Business Law, art 23-A, § 352 et seq.) prohibits almost precisely the same fraudulent conduct, except that there must be an intent to defraud or to obtain property from “ten .or more persons,” and the property must be obtained by a defendant engaged in a transaction in securities.

The evidence at trial overwhelmingly established that defendants and their agents fraudulently sold shares in the coops and collected maintenance payments without ever disclosing the massive defaults on the co-ops’ obligations. Defendants’ conduct in these circumstances is in direct conflict with the purposes of the Martin Act, which is to “protect the public and prevent fraud in the offering of securities” (Phoenix Tenants Assn. v 6465 Realty Co., 119 AD2d 427, 429). “Implicit in the statutory mandate is a legal obligation on the sponsor of a cooperative conversion plan to accurately and thoroughly disclose the potential risks involved [citations omitted]” (supra, at 429; see also, State of New York v Fashion Place Assocs., 224 AD2d 280, 281, lv dismissed 89 NY2d 917; State of New York v Manhattan View Dev., 191 AD2d 259).

To this end, the Martin Act requires sponsors of real estate syndication offerings to file an “offering statement” with the [121]*121Department of Law detailing the terms of the transaction “as will afford potential investors * * * an adequate basis upon which to found their judgment and shall not omit any material fact or contain any untrue statement of a material fact” (General Business Law § 352-e [1] [b]; see, Council for Owner Occupied Hous. v Abrams, 72 NY2d 553, 557; Matter of Gonkjur Assocs. v Abrams, 82 AD2d 683, 687-688, affd 57 NY2d 853). Until the Department of Law accepts the offering plan for filing, the Martin Act expressly forbids the offer or sale of real estate securities (General Business Law § 352-e [2]). Further, the regulations promulgated by the Attorney-General pursuant to the Martin Act (General Business Law § 352-e [6]) require that when the offering statement no longer provides accurate and complete information due to a change in circumstances, it “must be amended promptly” (13 NYCRR 18.5 [a] [1]). The jury, by its verdict, obviously concluded that defendants engaged in a scheme to sell shares in these five co-ops based on outdated and inaccurate information, and that the filing of the amendments did not negate defendants’ fraudulent intent. The record fully supports both of the jury’s conclusions.

We further find the evidence sufficient on the convictions on the remaining Martin Act and Penal Law counts. As opposed to a fraudulent scheme, these counts pertain to individual instances where Lurie obtained property from the victims by fraudulent representations or pretenses (see, General Business Law § 352-c [6]; Penal Law §§ 155.40, 155.35), or where he offered a false instrument for filing (Penal Law § 175.35). Contrary to defendants’ arguments, the evidence established both that a “taking” of property occurred, and that the acts and omissions of Lurie and his agents established an intent to defraud (see, Kuo Feng Corp. v Ma, 248 AD2d 168; People v Kaminsky, 127 Misc 2d 497, 501-503 [Sup Ct, NY County 1985]).

Defendant raises multiple claims regarding the testimony of the prosecution’s expert witness, Mary DiStephan, an Assistant Attorney-General assigned to the Real Estate Finance Bureau. DiStephan testified as an expert witness in the Grand Jury and at trial regarding basic co-op terminology, how buildings are converted to co-ops, the obligations of the sponsor during and after the conversion process, the review of conversions and amendments by the Department of Law and the disclosure and other regulatory requirements of the Martin Act.

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Bluebook (online)
249 A.D.2d 119, 673 N.Y.S.2d 60, 1998 N.Y. App. Div. LEXIS 4314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lurie-nyappdiv-1998.