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Fraudulent Accosting: Must You be Involved in a “Confidence Game” to Violate NY PL 165.30; “Trick” & “Swindle” Constitutionally Vague?

New York theft and larceny comes in too many forms and is perpetrated in too many ways to set forth in one blog entry. Usually, the police can justify an arrest in New York City or elsewhere by taking your alleged conduct and squeezing into one statute or another found in the New York Penal Law. Whether that offense is a degree of Grand Larceny or Criminal Possession of Stolen Property, there are ample other statues that Assistant District Attorneys can prosecute your for violating. Although not seen that often in “high end” frauds and thefts, on of those crimes that experienced New York larceny and theft attorneys see is Fraudulent Accosting pursuant to New York Penal Law 165.30.

A New York Penal Law Article 165 offense (this section of the New York Penal Law defines and sets forth misdemeanor and felony Criminal Possession of Stolen Property crimes), NY PL 165.30 is an “A” misdemeanor that is punishable by as much as a year in jail. Very briefly, a person is guilty of Fraudulent Accosting if and when that person is in a public place and has an intent to defraud another person out of money or property regardless of the value. Further that person must accost his or her target and defraud him or her out of their money or property by “means of a trick, swindle or confidence game.” There is a legal presumption found in the law that relates to confidence games that will not be addressed here.

Having briefly defined Fraudulent Accosting, the question or issue raised in this blog entry is what defines or is sufficient to establish “trick, swindle or confidence game?” While most New York criminal lawyers see Fraudulent Accosting charged in some New York City street card game or similar scam, how broad are the terms “trick, swindle [and] confidence game?” Fortunately, People v. Farrar, 120 Misc.2d 464 (N.Y.City Crim.Ct.1983) answers that question.

In Farrar, the relevant factual portion of the allegations contained in the criminal court complaint was that the defendant offered to sell 14 karat gold chains which were not in fact gold. The defendant argued that this conduct does not fall within the terms and structure of the Fraudulent Accosting statute. Instead, because selling these items, even if done with the intent to defraud, was not a confidence game, the Fraudulent Accosting crime was not the proper charge. Beyond this claim, the defendant further argued that the terms “trick” and “swindle” were too vague as to give the defendant notice as to what types of conduct was prohibited.

The Farrar Court first found that the “mere representation by the defendant that the chains were gold does not make the scheme a confidence game. In order to have made the scheme a confidence game, the defendant, for example, might have engaged in a ruse to convince a victim that he was an employee of Cartier of Tiffany thereby engendering confidence in the victim with respect to access to and genuineness of the chains.” Beyond finding that the defendant’s actions failed to establish a confidence game, the Court did not agree with the defendant’s other defenses. In other words, the defendant’s luck ran out here.

The Court further found that the precise words in NY PL 165.30 specifically prohibited people from accosting others in public places with intent to defraud by more than just a confidence game, but by trick or swindle. Hanging its proverbial hat on the “or” of the statute, the Court noted that there are different means to commit a Fraudulent Accosting beyond the common Three Card Monte or loaded dice scam (which depending on it circumstances my not be a confidence game either, but that is another story for another day!). Therefore, while the defendant’s conduct of lying about a gold chain and defrauding a purchaser may not be a confidence game, his conduct does fall into the acceptable categories of trick or swindle.

Despite the Court finding against the defendant, the defendant still had one last hope for dismissal which ultimately failed as well. As addressed above, the defendant also argued that the statute was constitutionally vague and did not provide him proper notice as to what conduct was illegal or prohibited. After all, how could the defendant reasonably know that trying to sell fake or lesser quality jewelry constituted a “trick” or “swindle!” To that end, the Court stated that “[d]ue process requires that a statute be definite. This requirement ‘is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.'” citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989. “The test is whether a reasonable person subject to the statute is informed of the nature of the offense prohibited and what is required of him.”

In debunking the defendant’s claim that “trick” and “swindle” were too vague for him to understand what conduct was criminal according to Fraudulent Accosting, the Court examined the dictionary as to these terms. “Simply stated, to swindle someone is to obtain money or property from him by fraud or deceit.” Further, the Court asserted that “[i]t is perfectly clear that if the defendant in the instant case had obtained money by falsely representing chains as gold when they were not gold, he would be guilty of larceny. There is nothing vague about that.”

If nothing else, take from Farrar that Fraudulent Accosting need not be the playing of a confidence game after being lured into a back alley. The law’s umbrella covers much more.

Whether you have been arrested for Grand Larceny, Criminal Possession of Stolen Property, Fraudulent Accosting, Petit Larceny or any other New York theft crime, review the NewYorkTheftAndLarcenyLawyersBlog.Com or Saland Law PC’s websites listed below to educate yourself on the law, criminal statutes and legal decisions.

Saland Law PC, a New York criminal defense firm established by two former Manhattan Assistant District Attorneys, represents clients throughout the New York City region from criminal investigation through trial.

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