People v. Podolsky

130 Misc. 2d 987, 496 N.Y.S.2d 619, 1985 N.Y. Misc. LEXIS 3285
CourtNew York Supreme Court
DecidedNovember 18, 1985
StatusPublished
Cited by3 cases

This text of 130 Misc. 2d 987 (People v. Podolsky) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Podolsky, 130 Misc. 2d 987, 496 N.Y.S.2d 619, 1985 N.Y. Misc. LEXIS 3285 (N.Y. Super. Ct. 1985).

Opinion

OPINION OF THE COURT

Harold J. Rothwax, J.

These defendants have been charged in 11 separate indict[988]*988ments with engaging in a scheme whereby they, as landlords, would hire a common group of coconspirators headed by two men, Morris Lender and Harmon Lambert, to forcibly remove legal tenants from their apartments in order to vacate the buildings in which the tenants lived, for resale and at great profit to the defendants. These indictments are the result of an investigation in which the members of the Lender-Lambert group were first charged with conspiracy, burglary and related crimes, to which charges the majority of the group members pleaded guilty and subsequently became State’s witnesses. Consequently, all but three of the defendants face multiple indictments, a series having been voted prior to and another subsequent to the receipt of accomplice testimony. Each of the defendants is charged with having conspired with the Lender-Lambert group to commit burglary, grand larceny and/or coercion and with substantive offenses of coercion, grand larceny and burglary in regard to specific tenants. The court addresses the issues common to all of the defendants’ omnibus motions, as follows:

LEGAL SUFFICIENCY OF THE EVIDENCE

The court has reviewed the minutes of the Grand Jury proceedings (CPL 210.30) underlying each indictment and finds the evidence sufficient in each instance to support the conspiracy, grand larceny and coercion counts.

The evidence sufficed to establish, in each instance, an agreement between the landlord defendants and Lender and Lambert, whereby the latter would harass, intimidate and commit crimes against tenants of the landlord in order to frighten such tenants into vacating their apartments. Lender and Lambert were to be paid a fixed amount, ranging from $500 to $1,500, per tenant, who abandoned his apartment. Pursuant to these agreements, Lender and Lambert would move a group of people recruited by them for this purpose, into vacant apartments with the landlord’s assistance. These recruits in turn would destroy property belonging to the legal tenants by vandalism, flooding and other means; would break into and ransack apartments of legal tenants; would threaten, intimidate, harass and occasionally assault the legal tenants; and would generally do their utmost to make the building unlivable. Lender and Lambert also installed some of the recruits as superintendents, with the instruction to commiser[989]*989ate with the tenants, to suggest that they move, but not to effect repairs or otherwise interfere with the operation of the plan. The recruits received lodging for the period of the operation. The "supers” received a fee. Lender and Lambert were paid for each tenant who vacated his apartment. The landlords obtained vacant and significantly more valuable property for resale.

In the initial series of indictments, proof of the landlord defendants’ participation in the plan was circumstantial, consisting of evidence of their knowledge of the operation and their acquiescence, in the form of visits to the premises or to other premises with Lender and/or Lambert; of cooperation in making apartments available at nominal or no rent to coconspirators, and in assisting the group in relocating; of efforts to disassociate themselves from the premises during the period of operation by, for example, pretending to have sold to Lender or Lambert; by the actual sale of the building after the operation; and, decisively, by the evident pattern of the methods of the Lender-Lambert group in regard to several buildings owned by the same defendant over an extended period of time. (See, e.g., People v Ozarowski, 38 NY2d 481 [1976].) Once the testimony of their coconspirators became available, there was direct evidence of the agreement each landlord had with Lender and Lambert in regard to particular buildings, which evidence was corroborated by the foregoing circumstantial evidence. (See, e.g., People v Sabella, 35 NY2d 158, 168-169 [1974].) The evidence established, prima facie, that each defendant individually agreed with Lender and Lambert that conduct amounting to burglary, larceny and coercion be committed by the Lender-Lambert crews (Penal Law § 105.00 et seq.).

LARCENY

The defendants contend that, regardless of the proven nature of the agreements, the alleged facts are insufficient to establish larceny as a matter of law, based upon the forcible removal of tenants from premises owned by the accused. The court upholds the grand larceny counts.

Certainly, the defendants’ ownership of the premises alleged to be the subject of larceny does not preclude prosecution. Since larceny is an offense against the rightful possession of property, title is not dispositive. (People v Hutchinson, 56 NY2d 868, 869 [1982]; People v Izzo, 96 Misc 2d 634, 635 [Bronx Crim Ct 1978]; Perkins, Criminal Law, Larceny § B [1], [990]*990at 238-239 [2d ed 1969].) An owner for purposes of the larceny statute is "any person who has a right of possession * * * superior to that of the [thief]” (Penal Law § 155.00 [5]). Thus, for example, the lawful possession of property is an interest "superior” to a security interest in the property "even if legal title lies with the holder of the security interest pursuant to a conditional sales contract or other security agreement” (Penal Law § 155.00 [5]; compare, Borgen v State, 56 Md App 521, 527, 468 A2d 390, 393, n 4 [1983]).

The general principle has been succinctly stated thusly: "[I]f personal property in the possession of one other than the general owner by virtue of some special right or title is taken from him by the general owner, such taking is larceny if it is done with the felonious intent of depriving such person of his rights * * * Thus, one having the property in goods may be guilty of stealing them from one to whom he has given them in custody as a special possession, as in the case of a lawful lien, pledge, bailment or levy of legal process. 2 Wharton’s Criminal Law, 12th Ed., section 1177.” (Trevathan v Mutual Life Ins. Co., 166 Ore 515, 520, 521, 113 P2d 621, 623, 624 [1941]; see also, People ex rel. Travis v Sheriff, 275 App Div 444, 446 [3d Dept 1949]; People v Walden, 124 Misc 2d 615, 620, n 4 [Sup Ct, NY County 1984]; Palmer v People, 10 Wend 165,166 [1833]; State v Parker, 104 Utah 23, 137 P2d 626, 628-629 [1943]; Larceny by Owner, Ann., 58 ALR 330.)

In the court’s opinion, a leasehold qualifies as a special property interest in the leased premises. "A residential lease is now effectively deemed a sale of shelter and services by the landlord” (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 325 [1979]).1 This sale gives the tenant a contractual right to possession of the premises, which cannot be divested by the landlord except in accordance with applicable statutes. (See, e.g., Fisher v Velasquez, 126 Misc 2d 24, 28-29 [Civ Ct, Kings County 1984]; New York City Rent and Eviction Regulations; Real Property Law, art 7, §§ 223-b, 232-a, 232-c, 235, 235-b, 235-d; RPAPL arts 7, 7-A.) The premises at issue were invari[991]*991ably governed by rent stabilization laws limiting the grounds upon which tenancies may be terminated and declaring lease provisions which are inconsistent to be void. (See, e.g., Fernandez v Tsoumpas Bros., 126 Misc 2d 430, 432 [Civ Ct, NY County 1984]; Code of Rent Stabilization Association of New York City, Inc.

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Bluebook (online)
130 Misc. 2d 987, 496 N.Y.S.2d 619, 1985 N.Y. Misc. LEXIS 3285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-podolsky-nysupct-1985.