The People of the State of New York, Appellant,
v.
Robert L. Norman, Respondent.
The People of the State of New York, Respondent, v.
John King, Appellant.
COURT OF APPEALS OF NEW YORK
85 N.Y.2d 609; 650 N.E.2d 1303; 627 N.Y.S.2d 302 (1995)
[p. 612]
Titone, J.
In each of these cases, the defendants were convicted of larceny after
selling goods to customers, taking the customers' money and then failing
to deliver the promised goods. Their appeals from the judgments ofconviction
require us to revisit the specialized requirements for the crimes that
were known as larceny by false promise and larceny by false pretenses before
the adoption of the Penal Law.
[p. 613]
I.
People v King
II.
On this appeal, defendant Norman argues that the trial evidence established
that he was guilty of no more than an ordinary civil breach of contract
and that the exacting requirements for proving criminal larceny by false
promise were not satisfied. Defendant King, who was also convicted
of larceny, contends that the case against him was erroneously submitted
as a larceny by false pretenses rather than a larceny by false promise
and that, accordingly, he was wrongly deprived of the benefit of the higher
burden of proof that is required in connection with the latter crime.
An assessment of the merits of these claims requires a review of the common-law
history and contemporary application of these two types of larceny.
Historically, the crime of larceny, which was created by English Judges
rather than Parliament, was narrowly circumscribed to encompass only trespassory
takings, most of which entailed some threat to the public peace ( People
v Olivo, 52 NY2d 309, 315; see, 2 LaFave & Scott, Substantive
Criminal Law § 8.1 [a], at 328; 4 Blackstone's Commentaries,
at 229-250; Bassett v Spofford, 45 NY 387; see also, 3 Torcia, Wharton's
Criminal Law § 354, at 298 [14th ed]). As trade and business
expanded, however, the English legal system became more sensitive to the
need to protect property owners' interests in personalty. As a consequence,
the courts began to create legal fictions which treated certain types of
takings as "trespassory" even though the owner had voluntarily relinquished
actual physical possession of the property (id.). [n. 1]
1 It has been suggested that the early treatment of all felonies as capital offenses was responsible, at least in part, for the English courts' confinement of the crime of larceny to a relatively narrow class of cases ( People v Churchill, 47 NY2d 151, 155; ALI, Model Penal Code § 223.1, Commentary, at 128-129 [1980]; 3 Torcia, op. cit., § 354, at 300; but see, People v Olivo, supra, at 315, n 1, citing Fletcher, Metamorphosis of Larceny, 89 Harv L Rev 469, 483-484).For example, a bailee who opened closed bales and misappropriated some or all of the contents was deemed to have committed a "trespassory" taking either because the bailee's possessory right terminated upon the "breaking of the bulk" or because the package's contents, as distinguished from its [p. 618] covering, were deemed to continue in the possession of the bailor (id.; see, Carrier's Case, YB Pasch 13 Edw IV, f 9, pl 5 [1473]). A second category of fictitious "trespassory" takings involved situations in which property that had been entrusted to a person in a special relationship to the owner was nonetheless deemed to have constructively remained in the owner's possession (2LaFave & Scott, op. cit., at 329; see, Bazeley's Case, 2 East PC 571 [Cr Cas Res 1799]; 3 Holdsworth, A History of English Law, at 365 [3d ed 1923]; cf., 39 Geo III, ch 85 [1799] [creating crime of embezzlement]).
2 This shift in the law-making initiative from the judiciary to the legislative body occurred as part of an over-all trend that arose toward the end of the 18th century as a result of a number of factors, including the expansion of the prestige and power of Parliament and a change in the perceived role of Judges from policy-makers to interpreters of "natural law" (see, ALl, Model Penal Code § 223.1, Commentary, at 128-129 [1980]).It was not until 1965, when the present Penal Law was adopted, that this State recognized the making of a dishonest promise as a crime (Penal Law § 155.05 [2] [d]; see, Third Interim Rep, Temporary State Commn on Revision of Penal Law and Criminal Code, Feb. 1, 1964, at 25). Since that time, the statute defining the crime of larceny has criminalized both wrongful takings by "false promises" and wrongful takings by "false pretenses" (Penal Law § 155.05 [2] [a], [d]).3 The common-law crime of "larceny by trick," which had been created by the courts at an earlier point in history, was limited to situations in which possession of, but not title to, the property had been obtained by the wrongdoer's false statements (see, People v Olivo, supra, at 316; 2 LaFave & Scott, op. cit., at 331; 3 Torcia, op. cit., § 355, at 301).
III.
The Appellate Division concluded that the evidence against defendant
was legally insufficient to establish that he acted with larcenous intent
under the strict standard set forth in Penal Law § 155.05 (2)
(d). The Court's application of that standard and the dissenter's
comments on the subject here suggest the need for further discussion about
the proper standard for appellate review.
Although the trier of fact in the Norman case was bound to consider
the evidence in light of the statutory "moral certainty" standard, the
function of an appellate court reviewing the record for legal evidentiary
sufficiency under Penal Law § 155.05 (2) (d) is limited to assessing
whether the inference of wrongful intent logically flowed from the proven
facts and whether any valid line of reasoning could lead a rational trier
of fact, viewing the evidence in the light most favorable to the People,
to conclude that the defendant committed the charged crime ( People v Williams,
84 NY2d 925; see, People v Wong, 81 NY2d 600, 608; People v Jennings, 69
NY2d 103; People v Deegan, 69 NY2d 976; see also, People v Geraci, supra,
at 371-372). At this level of inquiry, Penal Law § 155.05 (2)
(d)'s "moral certainty" standard is not an appropriate criterion for measuring
the sufficiency of the People's proof.
Contrary to the dissenter's contention, the standard of review we are
applying here is not a sudden departure from precedent, but rather is a
reflection of well-established principles that have regularly been reiterated
in our recent case law. In People v Deegan (69 NY2d 976, 978-979,
supra) and People v Jennings (69 NY2d 103, 114-115, supra), we stated that
the "moral certainty" standard is only for the trier of fact and that the
proper measure of legal sufficiency is whether the facts and the inferences
that flow therefrom support a finding for the People on every element of
the charged crime. We also stated in Deegan that the availability
of innocent inferences is not relevant to the sufficiency inquiry.
In so holding, we expressly overruled an older case, People v Eckert (2
NY2d 126, 129), in which the Court stated [p. 621] that the
legal sufficiency of circumstantial evidence is determined, at least in
part, by whether the facts and inferences "exclude to a moral certainty
every other reasonable hypothesis but guilt." We subsequently made clear
that the principles articulated in Deegan and Jennings, both of which involved
sufficiency review of indictments, apply equally to appellate review of
legal sufficiency after trial ( People v Wong, 81 NY2d 600, 608; see also,
People v Geraci, 85 NY2d 359, supra; People v Williams, 84 NY2d 925, 926,
supra). The dissenter's suggestion that the Jennings principle is limited
to review of the sufficiency of Grand Jury evidence may be maintained only
if this subsequent line of cases is ignored.
To the extent that the dissenter posits a heightened standard of review
for all cases in which the moral certainty standard is relevant,the validity
of his position is belied by the recent case law. To the extent that
the dissenter's argument is premised on the unique character of larceny-by-false-promise
prosecutions, his position cannot withstand analysis. Contrary to
the dissenter's novel construction, Penal Law § 155.05 (2) (d)
does not purport to modify or affect the judicially developed standards
for appellate review. Rather, the statute's reference to the "moral certainty"
standard merely serves to ensure that the fact finder will be required
to utilize that more exacting test in all prosecutions for larceny by false
promise, regardless of whether or not the particular prosecution rests
on wholly circumstantial proof. As such, the statute mandates no
more than that which this State's application of the constitutional reasonable-doubt
standard mandates in wholly circumstantial cases, i.e., that the trier
of fact refrain from finding guilt unless it is satisfied that the proof
excludes all innocent hypotheses "to a moral certainty."
Similarly, the older line of cases which the dissenter cites does not
provide persuasive support for the theory that legal sufficiency review
is different in appeals involving larceny-by-false-promise prosecutions
than it is in all other cases in which the moral certainty standard is
pertinent. People v Ryan (supra, at 640), People v Churchill
(47 NY2d, at 158, supra) and People v Luongo (47 NY2d 418, 429), were all
decided before the clarifying holdings in Jennings, Deegan and their progeny--at
a time when the Court frequently intermingled "moral certainty" verbiage
with its legal sufficiency analysis. Indeed, during the same era,
moral certainty verbiage was also injected into sufficiency decisions in
appeals involving prosecutions based on wholly circumstantial proof
[p. 622] (see, e.g., People v Montanez, 41 NY2d 53; People v Benzinger,
36 NY2d 29; People v Cleague, 22 NY2d 363). Just as this Court would now
avoid that type of fact-based analysis in circumstantial-evidence sufficiency
appeals, so too must we avoid engaging in such fact-based analysis in sufficiency
appeals from convictions for larceny by false promise.
Significantly, the discussion in Jennings on which the dissenter relies
(dissenting opn, at 629) did not distinguish at all between the "Ryan line
of cases" and the cases in which the moral certainty standard was pertinent
because of the circumstantial nature of the proof. On the contrary,
Ryan was cited interchangeably with the latter class of cases (see, 69
NY2d, at 114, citing People v Ryan, supra; People v Borrero, 26 NY2d 430;
People v Cleague, supra; People v Bearden, 290 NY 478; People v Newman,
80 Misc 2d 975, affd 85 Misc 2d 761), thereby confirming that this Court
has not previously viewed Penal Law § 155.05 (2) (d) as requiring
a unique level of sufficiency review.
Finally, we eschew the "moral certainty" standard as an appropriate
measure for legal sufficiency review because its application would blur
the important distinction between the role of the fact finder and that
of the reviewing court. Evaluating the evidence to determine whether
it is "wholly inconsistent with innocent intent or belief" and whether
it "exclud[es] to a moral certainty every hypothesis except that of [guilty]
intention" (Penal Law § 155.05 [2] [d]) requires such mental
operations as sifting through the proof, drawing the plausible inferences
and, most critically, weighing the strength of those inferences.
The very term "moral certainty" connotes that the decision-maker must possess
a particular degree of conviction about the correctness of its conclusion,
thereby demonstrating the test's unsuitability for the more objective legal
sufficiency inquiry. [HN4] In the absence of a clear indication of
a contrary legislative intent, we decline to construe Penal Law §
155.05 (2) (d) as modifying the concept of "legal sufficiency"--a concept
that has its roots in the constitutional and statutory limitations on our
review powers.
IV.
People v King
Bellacosa, J. (Dissenting).
I respectfully dissent in each case, and vote to affirm in People v
Norman and to reverse in People v King. Both criminal actions should be
dismissed.
In Norman, defendant failed to deliver logs to a purchaser who paid
the price for a kit and materials to build a house in the Adirondacks.
In King, defendant on Long Island failed to deliver a promised and paid-for
used vehicle. Both defendants acted wrongly. However, in my
view and on the respective records, their transgressions are not criminal.
Instead, the cases reflect quintessentially civil transactions gone awry.
Moreover, the standard of appellate review for the sufficiency issue in
this unique larceny classification may engender confusion with respect
to well-settled principles and protections.
Thus, I conclude that in addition to criminal prosecutions for these
derelictions being counter-intuitive, defects in the statutory-policy analysis
and appellate review lead to false positives concerning the satisfaction
of the high hurdle set by the Legislature and this Court for the successful
prosecution of such woebegone civil bargains and transactions (see, e.g.,
People v Luongo, 47 NY2d 418; People v Churchill, 47 NY2d 151; People v
Ryan, 41 NY2d 634, 639-640; Penal Law § 155.05 [2] [d] ["a finding
(of larceny by false promise) may be based only upon evidence establishing
that the facts and circumstances of the case are wholly consistent with
guilty intent ... and wholly inconsistent with innocent intent ... and
excluding to a moral certainty every hypothesis except that of the defendant's
intention or belief that the promise would not be performed"]).
The history and development of the distinct varieties of larceny in
criminal jurisprudence, while fascinating, are enmeshed in arcane nuance,
sophistication and technicality. Nevertheless, there is something
to be said for an overarching, simplified approach. These cases qualify
for the simpler approach and, thus, my analysis in each case does not reach
or require discussion of the fine distinctions between larceny by false
promise or false pretenses and the like. Indeed, in the King case,
I find that the particular record satisfies the threshold preservation
prerequisite as well.
The controlling guidepost for these cases should be the recognition
of the steadfast reluctance, resistance and barriers established by the
Legislature and the courts against authorizing [p. 627] the
transmutation of civil mishaps into felonious inflations. To obscure
the central demarcation, that for centuries has marked the boundary between
civil and criminal matters in the myriad of ordinary commercial transactions,
trivializes true criminality, diverts attention and resources away from
victims of true crimes against "the People," and engenders opportunistic
manipulation of the criminal processes by unhappy civil suitors for redress
of private wrongs and harms. My direct-line approach to the disposition
of these two cases and others like them would accord greater respect and
adherence to the important differences inherent in the distinct hemispheres
of civil and criminal disputes.
Moreover, the majority is imposing for the first time a significantly
switched and more forgiving standard of review in favor of the People with
respect to the "moral certainty" element of larceny by false promise (Penal
Law § 155.05 [2] [d]). This Court's consistent methodology,
mandated by the pertinent and unique penal statute (Penal Law §
155.05 [2] [d]), is found in People v Ryan (41 NY2d 634, 640-642, supra),
People v Churchill (47 NY2d 151, 158-159, supra), People v Luongo
(47 NY2d 418, 428-429, supra), and even People v Jennings (69 NY2d 103,
114), so heavily and curiously relied on by the majority for the opposite
view.
In People v Ryan (41 NY2d 634, supra), this Court considered the proof
for larceny by false promise and stated that "[t]he standard in the statute
equates to the rule used in circumstantial evidence cases" ( id., at 640).
The Court added that "we must conclude that the proof has failed to exclude
to a moral certainty every hypothesis except a guilty intent" ( id., at
642 [emphasis added]; see also, id., at 641 [stating that "it cannot be
said with any moral or reliable degree of certainty that ... defendant
did not intend to complete the transaction"]).
Similarly, in People v Churchill (47 NY2d 151, supra), this Court again
applied the moral certainty standard, with no mention of the more generally
applicable deferential standard of review at the appellate level.
Significantly, in finding for the defendant in Churchill, this Court emphasized:
"The inferences to be drawn from this record certainly do not exclude
to a moral certainty every hypothesis but that at thetime he entered into
the contracts defendant had no intention of meeting his obligations.
Indeed, equally strong is the inference [p. 628] that defendant
was simply an inexperienced, uneducated tyro whose talents of salesmanship
surpassed his ability to manage a business" ( id., at 158).
This Court, on review, explicitly and faithfully applied the heightened
statutory canon, holding that it was "impossible [for it] to conclude that
the proof exclud[ed] to a moral certainty every hypothesis except guilty
intent" ( id., at 159).
Again, in People v Luongo (47 NY2d 418, supra), the Court reiterated
the Ryan and statutory standard of proof, stating that a finding of larcenous
intent "may be made only where that determination flows naturally and reasonably
from the facts in evidence and must exclude to a moral certainty any implication
that the defendant has committed a mere civil wrong" ( People v Luongo,
47 NY2d 418, 428, supra).
Thus, as has been demonstrated, this Court has consistently used the
"circumstantial evidence/moral certainty standard" as the appropriate level
of scrutiny for appellate review in larceny by false promise cases (see,
People v Jennings, 69 NY2d, at 114, supra; People v Luongo, 47 NY2d 418,
supra; People v Churchill, 47 NY2d 151, supra; People v Ryan, 41 NY2d 634,
supra). Contrary to the majority's view, the moral certainty standard articulated
by this Court for reviewing legal sufficiency of larceny by false promise
convictions is not mere "verbiage" (majority opn, at 621), which can be
summarily cast aside (see, People v Luongo, supra; People v Churchill,
supra; People v Ryan, supra). This heightened standard of scrutiny on appellate
review is compelled by the Legislature's explicit and unique inclusion
of this terminology in the very definition of the crime of larceny by false
promise (see, Penal Law § 155.05 [2] [d]). Indeed, it
is this statutory, definitional distinction, ignored by the majority's
analysis, that for purposes of appellate review, distinguishes the larceny
by false promise line of cases from the circumstantial evidentiary-ruletype
cases on which the majority relies (majority opn, at 622), where deferential
appellate review is proper.
In formulating the modern, non-common-law brand of larceny by false
promise provision, the Commission on Revision of the Penal Law warned "that
an unqualified larceny by false promise 'might result in an avalanche of
criminal prosecutions based upon conduct essentially civil in character
and constituting little more than breach of contract' " (Donnino, Practice
Commentary, McKinney's Cons Laws of NY, Book 39, [p. 629] art
155, at 103, quoting Staff Notes of Commn on Revision of the Penal Law
and Criminal Code, Proposed New York Penal Law, McKinney's Spec Pamph,
at 351-352 [1964]). To implement the ensuing, explicit legislative
directive, this Court, therefore, has consistently applied the more exacting
"moral certainty" standard at the appellate review phase (see, People v
Churchill, supra; People v Luongo, supra; People v Ryan, supra).
That careful practice and protection, strictly followed in People v Ryan,
People v Churchill, and People v Luongo, cannot be undone by the majority's
bare assertion that, in these cases, "the Court frequently intermingled
'moral certainty' verbiage with its legal sufficiency analysis" and that
"moral certainty verbiage was also injected into sufficiency decisions
[in other contexts]" (majority opn, at 621).
Further and notwithstanding the majority's conclusory assertions, People
v Jennings (69 NY2d 103, supra) did not depart from the approach adopted
in our earlier precedents, nor did it, in my view, effect a wholesale sub
silentio overruling of cases and what they stand for. To the contrary,
Jennings--an indictment/Grand Jury review case--implicitly continues support
for the view that traditional, deferential appellate review is notenough
in the larceny-by-false-promise-trial context (see, People v Jennings,
69 NY2d 103, 114, supra).
In People v Jennings, this Court considered the issue of the proper
standard for reviewing the sufficiency of larceny evidence before a Grand
Jury ( id., at 114 [emphasis added]). In finding that the lower court
had erred in dismissing the indictment after applying the higher moral
certainty standard of proof of larcenous intent ( id., at 114), this Court
expressly distinguished the Grand Jury indictment cases:
"The cases cited to justify this heightened scrutiny, however, only
addressed the question whether the circumstantial evidence of larcenous
intent adduced at trial supported a petit jury's finding that guilt was
established beyond a reasonable doubt. Manifestly, such cases are
not controlling on a motion to dismiss an indictment prior to trial" (
People v Jennings, 69 NY2d 103, 114 [emphasis in original and added]).
Not only was the question we face today not before us in Jennings,
but we explicitly limited the reach of the Jennings holding to the indictment
phase of the larceny prosecution ( id., at 114). Consequently, if People
v Jennings (supra) is now [p. 630] declared to have overruled
the consistent, long-standing, prior approach adopted by this Court in
People v Ryan (41 NY2d 634, 640-642, supra) and reaffirmed in its progeny
(see, People v Churchill, 47 NY2d 151, 158, supra; People v Luongo,
47 NY2d 418, 428-429, supra), it comes as a surprise to me--and may, perhaps,
to scrutinizing interpreters and observers of this Court's works.
In sum, in my view, these cases do not meet the necessary hurdles of
review and sufficiency and, in any event, do not merit prosecutorial cognizance
in the criminal hemisphere.