The PEOPLE of the State of New York, Respondent,
JONES, Judge.
Use of the terms "scheme or business of making or collecting usurious loans" in section 190.42 of the Penal Law does not render the statute unconstitutional under the principle of void-for-vagueness, and the evidence in this record was sufficient to sustain defendant's conviction under the statute. . . .
Defendant was indicted for the crimes of criminal usury in the first degree (Penal Law, § 190.42--one count) and criminal usury in the second degree (Penal Law, § 190.40--four counts) arising out of a series of alleged usurious loans to one George Morgan in connection with his operation of the Italian-American Club of Franklin Square, County of Nassau.
At trial evidence was introduced to establish defendant's participation in four lending transactions: (1) on or about March 1, 1979 Morgan assumed a loan from defendant for some $4,000 for approximately 52 weeks with interest at 104% per annum; (2) at or about the same time Morgan assumed another loan from defendant for approximately $2,000 for about 52 weeks with interest at 182% per annum; (3) on or about August 1, 1979 Morgan obtained another loan from defendant for approximately $1,500 for approximately 32 weeks with interest at 156% per annum; and (4) on or about November 1, 1979 Morgan obtained a fourth loan from defendant for approximately $5,000 for about 19 weeks with interest at 104% per annum. The jury found defendant guilty on all five counts charged. On [p.102] appeal from the ensuing judgment of conviction the Appellate Division, 92 A.D.2d 923, 460 N.Y.S.2d 406, unanimously affirmed, without opinion. Defendant's appeal is now before us by permission of a Judge of our court.
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[p. 104]
With respect to defendant's conviction of criminal usury in the first degree under section 190.42 of the Penal Law, [n. 2] defendant advances two contentions before us, first, that the statute is unconstitutional, and, second, that in any event the evidence was insufficient to sustain his conviction. We reject both contentions.
2. CPL 190.42 provides:Defendant's contention as to unconstitutionality is based on his argument that use of the words "scheme or business of making or collecting usurious loans" renders the statute void for vagueness, thus denying defendant his constitutional right to due process. The terms "scheme or business" are not impermissibly vague. Substantive meaning can readily be imported from the dictionary meaning of the terms in common usage. "Scheme" may be defined to mean, "a design or plan formed to accomplish some purpose" and "business" may be defined to mean, "commercial activity [p. 105] engaged in for gain" (Black's Law Dictionary [5th ed.], pp. 1206, 179). (Cf. United States v. Batson, 706 F.2d 657, 680 ["scheme" not unconstitutionally vague as used in 7 CFR 722.817(b)(1)]; United States v. Kreimer, 609 F.2d 126, 128 [defining "scheme" under US Code, tit. 18, § 1341]; United States v. Van Buren, 593 F.2d 125, 126 ["business" as used in U.S.Code, tit. 18, § 922, subd. (a), par. (1) not void for vagueness]) In the context of this statute it is clear that what is denoted is a series of transactions, multiple as to loans if not borrowers, which are usurious and are made by the same person under such circumstances that they can factually be found to be interrelated and to constitute parts of an integrated single operation. What evidence will suffice to meet this definition will necessarily depend on the circumstances of each case.
"§ 190.42 Criminal usury in the first degree.
"A person is guilty of criminal usury in the first degree when, not being authorized or permitted by law to do so, he knowingly charges, takes or receives any money or other property as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per centum per annum or the equivalent rate for a longer or shorter period and either the actor had previously been convicted of the crime of criminal usury or of the attempt to commit such crime, or the actor's conduct was part of a scheme or business of making or collecting usurious loans.
"Criminal usury in the first degree is a class C felony."
Defendant's assertion that the evidence in the record in this case was insufficient to satisfy the statutory definition must be rejected. [n. 3] Here, there was evidence that, in order to provide the financial resources to ensure the continued operation of the Italian-American Club (in which defendant had a substantial economic interest), he made two loans to one individual followed by two more loans to the same individual for his personal use over a period of some eight months, all at usurious rates of interest, and made collections of such interest on all four loans over a period of some 12 months. The jury was warranted under the instructions of the trial court, to which no exception was taken, to conclude that such conduct constituted a "scheme or business of making or collecting usurious loans."
3. Defendant does not challenge the sufficiency of the proof as to his convictions for criminal usury in the second degree.For the reasons stated, the order of the Appellate Division affirming defendant's conviction on all five counts should be affirmed.
COOKE, C.J., and JASEN, WACHTLER, MEYER and KAYE, JJ., concur.
SIMONS, J., taking no part.
Order affirmed.