NCJ Number
47060
Journal
Criminal Law Bulletin Volume: 14 Issue: 3 Dated: (MAY-JUNE 1978) Pages: 197-202
Date Published
1978
Length
6 pages
Annotation
THE 1977 NEW YORK STATE SCHEME TO DEFRAUD STATUTE IS DISCUSSED AS AN EFFECTIVE TOOL IN THE PROSECUTION OF CONSUMER FRAUD CASES.
Abstract
IN NEW YORK, THE FALSE-PRETENSE LARCENY STATUTE PROVIDED LITTLE PROTECTION AGAINST THE MOST PREVALENT CONSUMER SWINDLES SUCH AS ADVANCE-FEE WORK AT HOME SCHEMES, PHONY INVESTMENT AND FRANCHISE SCHEMES, AND FRAUDULENT HOME-IMPROVEMENT SALES. PROSECUTORS HAD TO DEPEND LARGELY UPON OBSCURE LOCAL ORDINANCES AND MISDEMEANOR STATUTES AND INNOVATIVE APPLICATIONS OF THE LARCENY STATUTE. IT IS HOPED THAT PASSAGE OF THE SCHEME TO DEFRAUD STATUTE WILL, THROUGH ITS EMPHASIS ON THE CONDUCT OF THE DEFENDANT AND ITS LACK OF EMPHASIS ON LOSS TO INDIVIDUAL VICTIMS, MAKE PROSECUTION OF FELONY FRAUD CASES POSSIBLE WITHOUT ESTABLISHING LOSSES TO INDIVIDUALS IN EXCESS OF $250 OR NAMING INDIVIDUAL VICTIMS. ANOTHER ADVANTAGE OF THE DEEMPHASIS ON DOLLAR LOSS IS THAT THE STATUTE MAY ENCOMPASS FRAUD DEALING WITH INTANGIBLES AND VARIOUS KINDS OF LEGAL RIGHTS. IN ADDITION, A NUMBER OF BENEFITS MAY ENSUE FROM THE ADOPTION OF THEORIES OF CRIMINAL FRAUD DEVELOPED IN CASES INTERPRETING FEDERAL FRAUD STATUTES. AMONG THESE ARE THE CONCEPTS OF GUILT BY CONSCIOUS AVOIDANCE, RECKLESS DISREGARD FOR TRUTH, AND FALSE REPRESENTATIONS. IRRELEVANCE OF THE MONETARY SUCCESS OF A SCHEME IS ANOTHER ADVANTAGE TO BE DERIVED FROM FEDERAL CASELAW. THIS WOULD MAKE PROOF OF BASIC DISHONESTY ON THE PART OF THE DEFENDANT SUFFICIENT TO ESTABLISH GUILT AND COUNTER DEFENSES BASED ON THE LACK OF PROFIT. CHAIN REFERRALS AND PYRAMID SCHEMES MAY NOW ALSO BE PURSUED AS SCHEMES TO DEFRAUD. UNDER THE LARCENY STATUTE, THE ALMOST INSURMOUNTABLE BURDEN OF PROVING CRIMINAL INTENT FROM THE OUTSET AND TO A MORAL CERTAINTY HAS DETERRED PROSECUTION OF ALL BUT THE MOST FLAGRANT FALSE-PROMISES SCHEMES; UNDER THE NEW STATUTE THERE IS NO SUCH BURDEN OF PROOF. THE FULL EXTENT TO WHICH THE SCHEME TO DEFRAUD STATUTE WILL ENHANCE CONSUMER FRAUD PROSECUTION WILL DEPEND TO A LARGE EXTENT UPON THE WILLINGNESS OF INDIVIDUAL JUDGES TO ADJUST THE NEW CONCEPT TO FEDERAL STANDARDS OF CULPABILITY IN STATE PROSECUTIONS. NOTES ARE INCLUDED. (JAP)