People v. Simone

2 Misc. 3d 469, 771 N.Y.S.2d 304, 2003 N.Y. Misc. LEXIS 1553
CourtNew York Supreme Court
DecidedDecember 8, 2003
StatusPublished
Cited by2 cases

This text of 2 Misc. 3d 469 (People v. Simone) 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. Simone, 2 Misc. 3d 469, 771 N.Y.S.2d 304, 2003 N.Y. Misc. LEXIS 1553 (N.Y. Super. Ct. 2003).

Opinion

[470]*470OPINION OF THE COURT

Edward J. McLaughlin, J.

Introduction

Defendant, Richard Simone, is a former registered stockbroker on probation for having stolen money from a client. During the probation, the court learned from defendant that he had resumed trading and selling stocks and questioned him in court under oath about how he financed that activity. The information supplied by defendant was investigated by the District Attorney’s Office, which discovered that defendant had failed to inform the court that he was trading stocks as an authorized trading agent for five corporations. Thereafter, a probation violation specification was filed, alleging that defendant had violated probation by committing perjury when questioned by the court about his stock trading. After presiding over the probation violation hearing, the court concludes that defendant lied under oath, but makes no finding about whether he committed perjury.

Before defendant can be found in violation of probation for lying, the court must decide two issues. First, whether defendant’s sentence of probation contained an implied condition that he truthfully answer judicial questions about any stock trading that he conducted while on probation. Second, assuming that the answer to the first question is yes, did defendant receive sufficient notice that he allegedly had violated that condition when the probation violation specifications alleged that he had committed perjury instead of that he had lied to the court. The court rules against defendant on both issues and finds him in violation of his probation.

Findings of Fact

In 1995 and early 1996, defendant was a registered stockbroker at the now defunct A.R. Baron & Co. Inc. stock brokerage firm. During that time, the firm operated a massive criminal enterprise that stole millions of dollars from unsuspecting investors by fraudulently selling securities and manipulating stock prices. Defendant admitted stealing more than $800,000 from one client of the firm. He pleaded guilty to one count of grand larceny in the second degree and was sentenced to serve five years of probation and to pay a $5,000 fine.

On December 10, 1998, the day of sentence, defendant received a written copy of his probation conditions. The written conditions did not prohibit him from trading stocks. One of the [471]*471conditions required him to “answer all reasonable inquiries by the Probation Officer.” The written conditions did not state that defendant had to answer all reasonable inquiries by the court. The court did not announce such a condition on the day of sentence and no evidence exists that defendant was ever specifically informed of such a condition.

On December 2, 2002, defendant appeared in court without counsel to answer a violation of probation specification alleging that he had violated his probation by failing to notify the Department of Probation that he had changed his address. No probation violation hearing was conducted on that day. During the court proceeding, the court agreed with the Department of Probation’s liaison, who was in court, that this purely technical violation would not result in a revocation of probation, provided that defendant had paid the fine imposed as part of the sentence. Defendant informed the court that he had paid the $5,000 fine.

After learning that defendant had paid the fine, the court questioned defendant about his source of income and his Florida-based business, Simone Development. Defendant explained that he made “investments in real estate and the stock market.” The court asked defendant whether he was licensed to conduct that business in Florida. Defendant stated that he did not have a license but understood that he did not need a license “as long as I’m investing my own money.” He stated that he did not have any clients and therefore did not need to be licensed.

The court then asked how defendant had obtained the capital required to start his investment business. Defendant stated that his family had provided him with securities to start a margin account and that he had invested that money successfully during the late 1990’s. Defendant also explained that he ran this business from a room within a firm that helped him “clear” the trades. In exchange for the office space, the firm collected commissions on the trades that he completed.

In the next series of questions, the court inquired about the number of accounts that defendant had, asking him, “How many accounts do you have?” Defendant answered, “How many accounts do I have with them? I have two accounts with them, a personal account — .” The court interrupted defendant and said, “My question really is: How many accounts do you have, stock accounts?” The court then placed defendant under oath and asked, “How many accounts do you have?” Defendant answered, “I have four or five accounts . . . with three different brokerage [472]*472firms.” The court asked, “Trading exclusively for yourself?” Defendant answered, “Yes.”

In explaining his accounts, defendant stated that one of the accounts was a corporate account for Simone Development. When the court asked why defendant had a corporate account if he was trading for himself, defendant answered that the corporation had been established with money supplied by his father, so he was trading his father’s money. The court next asked defendant, “Apart from your father, do you send any money from your accounts to any other individuals?” Defendant replied, “No, I don’t sir.”

After the court concluded the inquiry, defendant said that he had been under the impression that his term of probation would end that day. The court acknowledged that had been a possibility, but stated, “But I think it goes without saying that not one of [the probation officials] asked anything like the questions that I just asked, and they’re responsible for supervising but I’m responsible for deciding and figuring it out, and I want to check some things out because if I found out that you’re investing somebody else’s money, I can get annoyed.” Defendant answered, “Okay. I swear under oath that I’m not, sir.”

On May 14, 2003, defendant appeared in court and was remanded based upon a declaration of delinquency alleging that he had engaged in financial management of funds exceeding $50,000 on behalf of persons other than family members and that he had committed perjury on December 2, 2002. On May 29, 2003, the People filed an amended declaration of delinquency that dropped the first allegation and added a second peijury allegation. In the amended declaration, the first specification alleged that defendant had committed peijury in the first degree by swearing falsely that he had been trading exclusively for himself, that he had not sent money from his trading accounts to any other person except his father, and that he was not investing anybody else’s money. The second specification alleged that defendant had committed peijury in the second degree because defendant’s statement that he traded exclusively for himself was inconsistent with an affidavit that defendant signed and submitted as part of an arbitration proceeding before the National Association of Securities Dealers. The court scheduled a probation violating hearing for June 6, 2003, but adjourned the hearing at defendant’s request. On June 12, 2003, the court conducted the violation of probation hearing.

[473]*473The Evidence at the Probation Violation Hearing

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Related

People v. Simone
13 A.D.3d 71 (Appellate Division of the Supreme Court of New York, 2004)
People v. Simone
2003 NY Slip Op 23889 (New York Supreme Court, New York County, 2003)

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Bluebook (online)
2 Misc. 3d 469, 771 N.Y.S.2d 304, 2003 N.Y. Misc. LEXIS 1553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-simone-nysupct-2003.