The People, Respondent,v.Fernando Maldonado, Appellant.BriefN.Y.January 11, 2017 Americas 91218825 To be argued by Louis O’Neill (20 minutes requested) APL-2015-00173 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- FERNANDO MALDONADO, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Seymour W. James, Jr. Louis O’Neill David Crow Counsel for Defendant-Appellant Counsel for Defendant-Appellant WHITE & CASE LLP THE LEGAL AID SOCIETY 1155 Avenue of the Americas 199 Water Street – 5th Floor New York, New York 10036 New York, N.Y. 10038 Telephone: (212) 819-8200 Telephone: (212) 577-3669 Facsimile: (212) 354-8113 Facsimile: (212) 509-8431 May 27, 2016 Americas 91218825 i TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 3 POINT I The People failed to prove that Mr. Maldonado took or “obtained” title or possession of 242 South 2nd Street via a “purported transfer” ........................................................................................................... 3 A. Mr. Maldonado preserved his arguments concerning the scope of a “purported transfer” for this Court’s review ............................ 4 B. The People’s interpretation of a “purported transfer” is vague, excessively broad, and unsupported by precedent .......................... 6 C. The People cannot satisfy the “taking” element of grand larceny 15 POINT II The People failed to prove that the owners of 242 South 2nd Street relied on Mr. Maldonado’s false representations ............................... 17 A. This Court may review Mr. Maldonado’s reliance arguments ..... 18 B. The People’s arguments fail to prove that reliance is not an essential element of larceny by false pretenses ............................ 22 POINT III The People failed to prove that Mr. Maldonado possessed or uttered a forged instrument, an element of criminal possession of a forged instrument in the second degree .................................................................... 29 A. This Court may review Mr. Maldonado’s arguments that the quitclaim deed he filed was not a forgery ..................................... 30 B. The People failed to prove that an individual commits forgery by signing his own name when he implicates only his own authority ........................................................................................ 32 POINT IV The People failed to prove that Mr. Maldonado was “dangerously close” to receiving the MFC loan............................................ 37 POINT V The People failed to establish that the value of the loan was more than $1 million ...................................................................................... 42 A. This Court may review Mr. Maldonado’s arguments as to the value of the loan ............................................................................ 42 B. The value of the loan did not exceed $1 million .......................... 43 CONCLUSION ........................................................................................................ 46 Americas 91218825 ii TABLE OF AUTHORITIES Page(s) CASES Commonwealth v. Figueroa, 859 A.2d 793 (Pa. Super. Ct. 2004) .................................................................. 8, 9 Faison v. Lewis, 25 N.Y.3d 220 (2015) ........................................................................................... 8 Lindlots Realty Corp. v. Cnty. of Suffolk, 278 N.Y. 45 (1938) ............................................................................................. 16 Marden v. Dorthy, 160 N.Y. 39 (1899) ........................................................................................... 8, 9 People v. Acevedo, 140 A.D.2d 846 (3d Dept. 1988) .................................................................. 39, 41 People v. Asaro, 94 N.Y.2d 792 (1999) ......................................................................................... 31 People v. Baker, 96 N.Y. 340 (1884) ............................................................................................. 22 People v. Butler, 94 A.D.2d 726 (2d Dept. 1983) .................................................................... 20, 32 People v. Chaitin, 94 A.D.2d 705 (2d Dept. 1983) ........................................................ 13, 20, 23, 28 People v. Churchill, 47 N.Y.2d 151 (1979) ......................................................................................... 23 People v. Denson, 26 N.Y.3d 189 (2015) ......................................................................................... 41 People v. Drake, 61 N.Y.2d 359 (1984) ............................................................................. 12, 13, 22 People v. Edwards, 95 N.Y.2d 486 (2000) ........................................................................................... 5 PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT Americas 91218825 iii People v. Foster, 73 N.Y.2d 596 (1989) ....................................................................... 23, 24, 27, 28 People v. Golb, 23 N.Y.3d 455 (2014) ......................................................................................... 12 People v. Gray, 86 N.Y.2d 10 (1995) ............................................................................................. 5 People v. Hampton, 21 N.Y.3d 277 (2013) ........................................................................................... 5 People v. Hawkins, 11 N.Y.3d 484 (2008) ..................................................................................... 5, 30 People v. Hughes, 22 N.Y.3d 44 (2013) ..................................................................................... 18, 19 People v. Jeanty, 94 N.Y.2d 507 (2000) ........................................................................................... 5 People v. Jennings, 69 N.Y.2d 103 (1986) ............................................................................... 5, 17, 21 People v. Karp, 298 N.Y. 213 (1948) ........................................................................................... 25 People v. Levitan, 49 N.Y.2d 87 (1980) ......................................................................... 31, 33, 34, 35 People v. Mahboubian, 74 N.Y.2d 174 ......................................................................................... 39, 40, 41 People v. N.Y. Trap Rock Corp., 57 N.Y.2d 371 (1982) ......................................................................................... 14 People v. Nesbitt, 20 N.Y.3d 1080 (2013) ................................................................................. 20, 31 People v. Norfleet, 267 A.D.2d 881 (3d Dept. 1999) .................................................................. 20, 31 PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT Americas 91218825 iv People v. Norman, 85 N.Y.2d 609 (1995) ......................................................................................... 22 People v. Olivo, 52 N.Y.2d 309 (1981) ................................................................................... 25, 26 People v. Piscotta, 98 A.D.2d 926 (3d Dept. 1983) .................................................................... 20, 28 People v. Sanders, 67 Cal. App. 4th 1403 (1998) ............................................................................. 26 People v. Smith, 22 N.Y.3d 462 (2013) ........................................................................................... 5 People v. Termotto, 81 N.Y.2d 1008 (1993) ................................................................................passim People v. Turner, 5 N.Y.3d 476 (2005) ........................................................................................... 43 People v. Warren, 66 N.Y.2d 831 (1985) ......................................................................................... 39 People v. Watt, 81 N.Y.2d 772 (1993) ......................................................................................... 45 State v. Pittman, 2015 Iowa App. LEXIS 81 (Ct. App. Feb. 11, 2015) ......................................... 27 Tompkins v. Rodenberger, 200 Misc. 915 (Sup. Ct. Tioga Cnty. 1951) ......................................................... 8 Wallach v. Riverside Bank, 206 N.Y. 434 (1912) ........................................................................................... 16 STATUTES CPL § 210.20 ........................................................................................................... 18 CPL § 255.20(3) ....................................................................................................... 19 CPL § 330.30 ........................................................................................................... 18 PRIVILEGED & CONFIDENTIAL ATTORNEY WORK PRODUCT Americas 91218825 v CPL § 470.05(2) ................................................................................................... 5, 19 MPC § 223.0 .............................................................................................................. 9 MPC § 223.0(5)(a) ............................................................................................... 9, 10 MPC § 223.3 ............................................................................................................ 10 PL § 155.00(2) ..................................................................................................... 6, 13 PL § 155.05 ........................................................................................................ 13, 24 PL § 155.05(1) ............................................................................................. 11, 21, 27 PL § 155.05(2) ................................................................................................... 21, 27 PL § 155.05(2)(b)-(e) ............................................................................................... 24 PL § 155.42 .............................................................................................................. 42 PL § 165.15(1) ......................................................................................................... 11 18 Pa. C.S.A. § 3922(a) ............................................................................................. 9 MISCELLANEOUS Black’s Law Dictionary ............................................................................................. 7 Denzer and McQuillan, Practice Commentary, McKinney’s Cons Law of NY, Book 39, Penal Law § 155.00 (1967) ............................................... 10, 23 MPC, Proposed Official Draft, § 223.05(a) (May 1962) ......................................... 10 MPC, Tentative Draft No. 4, § 206.63 (May 1955) ................................................ 10 Rollin M. Perkins & Ronald N. Boyce, Criminal Law 378 (3d ed. 1982) ................................................................................................................... 27 Wayne R. LaFave, 3 Substantive Criminal Law 122 (2d ed. 2003) ........................ 26 Americas 91218825 1 INTRODUCTION A Housing Development Fund Corporation (“HDFC”), a City-chartered cooperative apartment for low-income people, owns the multi-unit building at 242 South 2nd Street in Williamsburg, Brooklyn, which is the subject of this case. In 2007 and 2008, Fernando Maldonado engaged in a series of, at times, quite vexing, but ultimately harmless, actions toward 242 South 2nd Street and the HDFC. His timing was unfortunate. In the middle of the biggest wave of housing fraud in history, the People chose to level the full weight of the State against Mr. Maldonado – an unemployed bartender – by bringing an intimidating multi-count indictment against him. Later, however, the People had to scramble at trial to come up with a coherent theory of prosecution. The trial judge, furthermore, admitted that he didn’t understand the law on the top count, but submitted it to the jury anyway. And, even now, as the case goes through appellate review, the People continue to shift positions. The People charged Mr. Maldonado with, among other things, grand larceny in the first degree (because he filed with the City Register a homemade quitclaim deed to a building he did not own), criminal possession of a forged instrument in the second degree (because he signed his own name – as both grantor and grantee – to the quitclaim deed for the property), and attempted grand larceny in the second degree (because he tried and failed to get a construction loan to improve the Americas 91218825 2 building). The People failed to prove at least one necessary element of each of these counts, largely because they charged Mr. Maldonado with crimes far more serious than his actions warranted. In this Court, the People have submitted a 109-page responsive brief that misstates a number of Mr. Maldonado’s positions, offers circular reasoning and, despite its extraordinary length, cites little, if any, precedent in support of their arguments. On the central issue of whether Mr. Maldonado’s actions amounted to a transfer or purported transfer of the property, the People merely assert that their own interpretation of “purported transfer” is correct and then proceed to argue subsequent points related to the term based on their own incorrectly presupposed interpretation. The People cite only a legal dictionary in support of their “purported transfer” interpretation. By contrast, in support of his interpretation of “purported transfer,” Mr. Maldonado references this Court’s precedent, legislative history, interpretive treatises, other sections of the Penal Law, and also examines the surreal and unintended consequences of the People’s position. The People also misstate (or misunderstand) Mr. Maldonado’s position regarding the quitclaim deed. Thus, the People suggest repeatedly that Mr. Maldonado argued that his quitclaim deed is powerless because it is forged. This is not true. The quitclaim deed is not a forgery and Mr. Maldonado never argued that it was. Rather, Mr. Maldonado argued that his homemade deed, like a forged Americas 91218825 3 deed, was void ab initio. This is a critical distinction, which the People overlook entirely. This kind of thing, however, is characteristic of the People’s responsive brief. Tasked with defending unjust convictions that resulted from severe overcharging, the People do not directly answer Mr. Maldonado’s arguments or resolve the deficiencies in each charge. Rather, they seek to create confusion. ARGUMENT POINT I The People failed to prove that Mr. Maldonado took or “obtained” title or possession of 242 South 2nd Street via a “purported transfer” The People charged Mr. Maldonado with grand larceny in the first degree after he filed a homemade quitclaim deed for the building with the City Register. In so doing, the People stretched the larceny statutes to their snapping point, taking them beyond the scope of their plain meaning and any court’s interpretation. The People now argue that (i) Mr. Maldonado’s challenge to this charge is unpreserved and (ii) on the merits, the Appellate Division correctly found that a person may commit larceny solely by filing a homemade quitclaim deed for a given piece of property despite “obtaining” nothing. Regarding both preservation and the merits, the People are mistaken. Americas 91218825 4 A. Mr. Maldonado preserved his arguments concerning the scope of a “purported transfer” for this Court’s review The People concede that Mr. Maldonado’s counsel argued at trial that the first-degree grand larceny charge was unsupported because there was no “actual” transfer. The People now, however, contend that trial counsel never argued that there was no “purported transfer” of the property. For this reason, the People suggest Mr. Maldonado cannot here challenge the People’s erroneous interpretation of “purported transfer.” The People are wrong. It is true that Mr. Maldonado argued at trial that there was no “actual” transfer of title or possession of 242 South 2nd Street. (A637-40). This is the same argument advanced in the Appellate Division and in Mr. Maldonado’s opening brief before this Court. Opening Br. at 25-37. Mr. Maldonado’s position is now, and always has been, that the definition of “obtain,” including a “purported transfer,” cannot be broad enough to encompass a situation where no actual transfer of title or possession has taken place. Regardless of the People’s fanciful interpretation, if no transfer occurred, then no “purported transfer” could occur either. Because Mr. Maldonado’s argument here is identical to the argument he advanced at every stage of this case, it is preserved. In addition, the defense’s objection and argument at trial resulted in a broader colloquy with the court about whether the top count could stand. As part of that exchange, the court noted that this was a “title case” and directly referenced Americas 91218825 5 the “purported transfer” language in denying the defense motion. (A678-679). Thus, counsel’s arguments below drew the court’s attention to the issue, caused the court to engage with the question at hand, and resulted in the court issuing a ruling. The issue is preserved. See People v. Gray, 86 N.Y.2d 10, 19 (1995) (a defendant preserves an issue for review when he “make[s] his or her position known to the court.”).1 As a final note, the trial court was well aware of the confusion surrounding the “purported transfer” issue. The court allowed the People to bring in an Appeals Assistant to argue at length that the facts here somehow could make out a completed larceny, (see A651-658), but remained in doubt: So I’m going to reserve on it. I’ll probably give it to the jury, but I would expect -- I mean, you know, the defense submitted to the Court and copies to counsel of the very issue about when there’s a dispute over the filing of a deed and so on. And we know about that. That’s not really-- it doesn’t really go to the larceny. So it would be great if there was a real property larceny case, something closer to this. I can’t believe it’s a first-impression case. But for now, we’re going to pass over it with the understanding that I’m reserving on it and will probably give it to the jury and take another look at it if the jury convicts on that count, but I will also take a look at whatever cases you submit on Tuesday morning. 1 In any event, under CPL § 470.05(2), the preservation statute, the issue is preserved regardless of whether counsel’s protest was specific, on the ground that “in response to a protest by a party, the court expressly decided the question raised on appeal.” Here, the trial court expressly decided the purported transfer issue in response to counsel’s protest. See People v. Smith, 22 N.Y.3d 462, 465 (2013); People v. Hampton, 21 N.Y.3d 277, 284 n. 2 (2013); People v. Hawkins, 11 N.Y.3d 484, 493 (2008); People v. Edwards, 95 N.Y.2d 486, 491 n. 2 (2000); People v. Jeanty, 94 N.Y.2d 507, 514 n.* (2000); People v. Jennings, 69 N.Y.2d 103, 124 n. 9 (1986). Americas 91218825 6 (A657-58). As late as jury deliberations, the court remained troubled by the “purported transfer” issue, even expressing a desire to avoid using the word “purported” during any read-back: THE COURT: They didn’t get from the Court or, really, I don’t think from the summations, the importance, significance or meaning of the word “purported,” so that’s why I’m not going to use that word, but that’s why I’m just going to say that if they want any further explanation of the elements or recharge on any elements of larceny, including definition of “obtained,” they should ask for it . . . I suppose the Court could have been a little bit more explicit about answering the importance of . . . purported . . . (Proceedings, A845). Thus, the issue of “purported transfer” was repeatedly and specifically before the trial court. The issue is preserved and this Court may review it. B. The People’s interpretation of a “purported transfer” is vague, excessively broad, and unsupported by precedent Under the larceny statutes, a person “obtains” property when he brings about “a transfer or purported transfer of property.” P.L. § 155.00(2). Throughout this case, the People have changed their theory on grand larceny in the first degree2 – a warning sign that they were in uncharted legal waters. The People now pin their 2 Compare A638-39 (filing a false deed can lead to larceny because it puts “a cloud on title,” the legal effect of which is that “individuals have to go to court to disprove that, that he is the owner to all the world”) with A647 (“As long as that forged deed was on record with the clerk’s office, that was a manifest interference with the ownership interest of the rightful owner.”) with People’s Br. at 59-63 (arguing that filing a false deed is a completed larceny because it is a “purported transfer”). Americas 91218825 7 hopes exclusively on the term “purported transfer” to justify Mr. Maldonado’s conviction for a Class B Felony. Mr. Maldonado filed a homemade quitclaim deed with the New York City Register for an apartment building at 242 South 2nd Street which he did not own. It is undisputed that the quitclaim deed was powerless and did not transfer legal title. See People’s Br. at 51 (“It is true, as a matter of real property law, that the filing of a forged deed does not convey property rights superior to that of the true owner.”). Yet, the People charged Mr. Maldonado with a completed larceny because, in their view, the deed caused a “purported transfer” of the building. According to the People, a person engages in a “purported transfer” when he “makes a claim, whether true or false, that the property has transferred.” People’s Br. at 44. In support of this position, the People rely solely on the definition of “purport” in Black’s Law Dictionary. Id. As shown in Mr. Maldonado’s opening brief, however, the People’s contention is meritless. A “purported transfer” of real property requires the transfer of a voidable deed, where an actual, albeit revocable, transfer occurs due to a defendant’s false claims. See Brief for Defendant-Appellant (“Opening Br.”) at 38-39. This Court should adopt Mr. Maldonado’s interpretation of “purported transfer” and reject the People’s interpretation for a number of reasons. Americas 91218825 8 First, the People’s definition of “purported transfer” is contrary to this Court’s precedent. In People v. Termotto, this Court stated that a “conviction for larceny by false pretenses must be based on evidence that a defendant ‘obtained title or possession’” of another’s property. 81 N.Y.2d 1008, 1009 (1993) (emphasis added) (quoting People v. Drake, 61 N.Y.2d 359, 362 (1984)). The People’s theory here – that a person commits larceny merely by falsely claiming to own property that is not his, even if he never obtains “title or possession” – is not consistent with Termotto’s statement of the law. Under Termotto, a “purported transfer” of real property requires the transfer of a voidable title. A person who receives a voidable deed has “obtained title,” albeit through a false statement or pretense. See, e.g. Tompkins v. Rodenberger, 200 Misc. 915 (Sup. Ct. Tioga Cnty. 1951) (finding that defendant obtained a voidable title after inducing the plaintiff to sign a deed to the premises upon the false promise of a monetary payment); Faison v. Lewis, 25 N.Y.3d 220 (2015); Marden v. Dorthy, 160 N.Y. 39 (1899). A voidable deed may then later be set aside. Thus, it “purports” to transfer title: it is an actual transfer, but unlike a lawful transfer, it is revocable because it is based on a person’s false claim. 3 3 Instead of citing New York law, the People rely on a lower court case from Pennsylvania, Commonwealth v. Figueroa, 859 A.2d 793 (Pa. Super. Ct. 2004). Not only is this lower court case from a foreign jurisdiction, it fails to advance the People’s position. In Figueroa, the defendant and his co-conspirators identified “various abandoned properties . . . looking up the corresponding deeds in City Hall, selling the properties to themselves, alleged family members[,] or other third parties[,] forging new deeds[,] then creating and Americas 91218825 9 The People seek to distinguish Termotto on the ground that Termotto does not address the “obtaining” element of larceny. Termotto, however, described the necessary elements of larceny by false pretenses; elements the People “must” prove for a conviction. Id. One of those elements requires the defendant to “obtain[] title or possession” of another’s property. Id. Second, the Model Penal Code (“MPC”) strongly supports Mr. Maldonado’s argument that the phrase “purported transfer” does not expand the statute and does not override the requirement that the property be “obtained.” The MPC defines “obtain” as “in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another.” MPC § 223.0(5)(a) (emphasis added). The drafting history of the definition of “obtain” in the MPC is instructive. See MPC, § 223.0, footnote 124 (tracing the drafting history of the definitions). The definition of “obtain” originally read, “in relation to property, to bring about a transfer, whether to the actor or another, or to secure or extend a right to retain that to which another is entitled.” MPC, Tentative Draft No. 2, § 206.64 (May 1954). delivering new, yet false, deeds to these parties.” Id. at 796. The Commonwealth of Pennsylvania charged the defendants with a criminal conspiracy to transfer a legal interest in a property and two counts of theft by deception. Id. at 796. In its decision, the Pennsylvania court focuses on the conspiracy count, the valuation method of the properties in question, and the issue of whether the trial court erred in denying a new trial due to newly discovered evidence. The court does not define or analyze what constitutes a “purported transfer” of property, although “purported transfer” is contained in the definition of “obtain” in 18 Pa. C.S.A. § 3922(a). Just as did the trial court in Mr. Maldonado’s case, the Pennsylvania court apparently avoided grappling with this term. Americas 91218825 10 This definition was kept through another draft but then changed to read, “in relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another.” Cf. MPC, Tentative Draft No. 4, § 206.63 (May 1955) with MPC, Proposed Official Draft, § 223.0(5)(a) (May 1962). The commentary of this section describes this as a “[m]inor verbal change[].” The conclusion therefore, is that the drafters of the MPC considered that the change from “to bring about a transfer” to “to bring about a transfer or purported transfer” had no substantive import. The MPC’s official commentary on the definition of “obtain” further confirms this interpretation. Not a single word is dedicated to the meaning of “purported.” See MPC § 223.3, comment 2. Accordingly, it simply defies reason to suggest, as the People do, that the drafters of the MPC, and following them the New York State Legislature, surreptitiously used a “[m]inor verbal change” to broaden the scope of the crime of larceny to include actions that may in some way resemble transfers but in which no property is actually “obtained.” Likewise, the authoritative commentaries on the New York Penal Law offer total silence on the meaning of “purported transfer.” See Denzer and McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 155.00, (1967). Thus, the history of the MPC and the absence of any commentary Americas 91218825 11 on the New York statute strongly counsel against the People’s over-expansive interpretation. Third, the People argue that the Legislature’s inclusion of unsuccessful attempts (i.e., what the People now try to criminalize with their interpretation of “purported transfer”) within the definition of a completed larceny in the theft of services statute (P.L. § 165.15(1)), shows that the Legislature intended for that same reasoning to apply to the grand larceny statute, even though the latter contains no such language. See People’s Br. at 47. This argument is strained and unpersuasive. Mr. Maldonado does not dispute the Legislature’s power to criminalize certain actions that never amount to a “completed” crime. But what the Legislature can do is irrelevant; it is what the Legislature actually has done that matters. As the People admit, P.L. § 165.15(1) explicitly refers to an “attempt” within the definition of a completed crime. But the grand larceny statute, under which the People charged Mr. Maldonado, does not. The Legislature knows how to criminalize an “attempt” when it wants to. Yet, it chose not to do so when drafting the grand larceny statutes. See P.L. § 155.05(1). Rather than face this statutory language directly, the People suggest an artificial distinction based on what they guess – or hope – the Legislature intended. The People argue that “presumably the Legislature referred to a ‘purported transfer Americas 91218825 12 of property,’ rather than to an ‘attempted transfer of property,’ because the Legislature intended for the crime of larceny to be complete when a person actually brings about a purported transfer of property, but not where a person unsuccessfully attempts to bring about a transfer of property.” People’s Br. at 49 (emphasis added and in original). The People offer no support for what they contend the Legislature “presumably” intended to do. This argument is therefore unpersuasive on precedent, logic, and as a matter of common sense. The Court should adopt the simpler view of the statute urged by Mr. Maldonado. See People v. Golb, 23 N.Y.3d 455, 468 (2014) (“If two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity.”). The Legislature did not include “attempt” language within the grand larceny statute; the statute requires an actual transfer of title or possession – as this Court has stated for over three decades. See Termotto, 81 N.Y.2d at 1009; People v. Drake, 61 N.Y.2d at 362. Fourth, the People’s interpretation of “purported transfer” would lead to bizarre and unintended outcomes. The People state: “… a person brings about a purported transfer of property when that person makes a claim, whether true or false, that the property has transferred.” People’s Br. at 44. But consider the following scenario: a person stands near the entrance to the Empire State Building with a sign reading, “I own this building and do not permit anyone to enter.” That Americas 91218825 13 person knows that he does not own the Empire State Building. A tourist who plans to pay a fee to go to the top of the building sees the sign, naively believes it, and leaves. Has the sign-holder committed grand larceny of the Empire State Building? The commonsense answer, based on the language of the statute and this Court’s decades of precedent, suggests the answer is no. See P.L. § 155.05; Termotto, 81 N.Y.2d at 1009; Drake, 61 N.Y.2d at 362. But, if the Court follows the People’s theory in this case, the answer would be yes.4 Even more incredibly, the People argue that Mr. Maldonado should be guilty of “obtaining” the building even if he did not engage in any kind of “purported transfer.” The People state: . . . because the Legislature has explicitly provided that the term “obtain” may include even definitions not expressly provided by the statute, and because the People’s theory on how defendant may be 4 The elements of larceny by false pretenses require that the defendant (1) “obtained title or possession” of another’s property, (2) “by means of an intentional false statement concerning a material fact,” on which (3) “the victim relied in parting with the property.” Termotto, 81 N.Y.2d at 1009; see also People v. Chaitin, 94 A.D.2d 705, 705 (2d Dept. 1983) (“The elements of [larceny by false pretenses] are (1) an intent to deprive an owner of property, (2) the making of a false representation, (3) knowledge of the falsity, (4) obtaining the property of another, and (5) that the owner of the property was induced by the representation.”). According to the People’s theory, the sign-holder in the above example “obtained title or possession” of the building by falsely proclaiming he owned it. See People’s Br. at 44. The sign-holder never received title or possession of the Empire State Building; he did nothing more than hold a sign on the sidewalk. But, according to the People, that is irrelevant. He “made[] a claim, whether true or false, that the property has transferred” to him and did not even need to make a “purported transfer.” See People’s Br. at 44, 50-51. To the People, this satisfies the element of “obtaining” the property as defined in Penal Law § 155.00(2). The sign-holder also meets the second element because he knew the statement was false. And finally, according to the People’s theory here as addressed in Section II infra, the sign-holder meets the third element because someone (regardless of whether he was the owner or not) relied upon his false statement: the tourist. Americas 91218825 14 deemed to have “obtain[ed]” the property appears to fit the Legislative intent, defendant may be deemed to have obtained the property irrespective of whether the filing of the forged deed constituted a purported transfer of the property . . . [T]he unrestricted definition of the word “obtain” provided by Penal Law § 155.00(2) should be deemed broad enough to include within its meaning the circumstances of this case, where defendant filed a forged deed and thereby announced to the world that he was an owner of the property. . . People’s Br. at 50-51. The People’s argument reveals a dangerous flexibility with the elements of the crime, which, of course, the People must prove to obtain a conviction. The People’s disregard of the elements of the crime would lead to bizarre results. This underscores how severely and unfairly they overcharged Mr. Maldonado. Under the People’s theory, the larceny statute would become unworkably vague and would be essentially “no standard at all.” See People v. N.Y. Trap Rock Corp., 57 N.Y.2d 371, 380 (1982). Separate from the interpretation of “purported transfer,” the People argue that they proved enough to satisfy the jury charge at trial and therefore, for this reason alone, this Court should uphold Mr. Maldonado’s conviction for grand larceny. See People’s Br. at 40-41. That is, the People contend that this Court should affirm here, whether or not their interpretation of “purported transfer” is correct, because the issue did not appear in the jury’s charge. The People are mistaken because they rely on circular logic. Americas 91218825 15 To prove the count as charged, the People had to show that an actual transfer of either title or possession took place. See Termotto, 81 N.Y.2d at 1009. To find Mr. Maldonado guilty, the jury had to find he “wrongfully obtained real property, title to real property, from its owner.”5 (A789-90) (emphasis added); see People’s Br. at 40. As Mr. Maldonado maintains, a person “obtain[s]” property only when there is an actual transfer of title or possession. This is true even when the scope of “purported transfer” is considered. In advancing their jury-charge argument, the People presuppose that their interpretation of “purported transfer” is correct (i.e., no actual transfer is required to satisfy the “obtains” element, and that really anything satisfies that element), even though they cite no support for this position. If the Court adopts Mr. Maldonado’s interpretation of “purported transfer,” or an interpretation advanced by neither Mr. Maldonado nor the People, then the People’s circular argument necessarily fails. C. The People cannot satisfy the “taking” element of grand larceny The People further argue that the taking element of grand larceny was satisfied because (1) Mr. Maldonado’s quitclaim deed transferred ownership from the HDFC (the actual owner) rather than Mr. Maldonado himself (who had no 5 The People also cite the trial court’s instructions to the jury in support of this argument. The Court, however, should give these instructions little, if any, weight as the trial court itself commented on its failure to provide any meaningful guidance on the meaning of a “purported transfer.” (A845) (“I suppose the Court could have been a little bit more explicit about answering the importance of . . . purported . . .”), see supra, at 6. Americas 91218825 16 ownership interest in the building) and (2) Mr. Maldonado “took” the property at 242 South 2nd Street by interfering with the occupant’s property rights. Both arguments fail. First, Mr. Maldonado’s quitclaim deed did not and could not suggest that it “transfer[red] an ownership interest from HDFC to himself.” People’s Br. at 59-60 (emphasis in original). The seller listed on the quitclaim deed is “Fernando Maldonado.” (Quitclaim Deed, A854). Similarly, the grantor’s signature was simply “Fernando Maldonado.” (Quitclaim Deed, A855). There is nothing on the face of the quitclaim deed suggesting that the HDFC transferred any interest. The HDFC’s only mention on the quitclaim deed was as a “Buyer.” And a “Buyer” does not give an interest in property because, by definition, the opposite is true; a “Buyer” receives an interest from a “Seller” who in this case was listed as Mr. Maldonado. (Quitclaim Deed, A854). To the extent the People suggest that the quitclaim deed necessarily implicated the HDFC’s interest in the apartment building because it was the actual owner, the People misconstrue New York real property law. A quitclaim deed conveys only what the grantor owns, nothing more. See Lindlots Realty Corp. v. Cnty. of Suffolk, 278 N.Y. 45, 56 (1938) (“ordinary quitclaim deeds” convey “only such title as the grantor had.”); Wallach v. Riverside Bank, 206 N.Y. 434, 438 (1912) (“A quitclaim deed is as effective as any to convey all the title the grantor Americas 91218825 17 has[.]”). The People’s own witness so testified at trial. (Bobrow, A551) (“Actually, what a quitclaim deed does is conveys as much as you own . . . If you don’t own anything, technically, you haven’t conveyed anything[.]”). Here, the quitclaims deed’s grantor was Mr. Maldonado, and so it transferred what he owned: nothing. Second, as explained in Mr. Maldonado’s opening brief, a “taking” of property by interference with an owner’s rights requires that a defendant “exercised dominion and control over the property . . . in a manner wholly inconsistent with the owner’s continued rights.” People v. Jennings, 69 N.Y.2d 103, 118 (1986). See Opening Br. at 27-29. The facts here fall well short of that legal standard. Mr. Maldonado may have been a nuisance, but he did not physically “take” the fully occupied apartment building. The People fail completely at offering a persuasive rebuttal on this point, and a further recitation of this argument (beyond that of the opening brief) is therefore unnecessary. POINT II The People failed to prove that the owners of 242 South 2nd Street relied on Mr. Maldonado’s false representations Initially, the People, defense counsel and the trial court all missed the fact that an essential element of the crime of grand larceny by false pretenses is that the victim, and not some other party, must rely on the defendant’s false representations in parting with his property. When defense counsel brought the reliance issue to Americas 91218825 18 the court’s attention in his C.P.L. § 330.30 motion, the court noted that “the owner reliance concept is so relatively obscure and counter intuitive that it is not surprising that we all overlooked it,” and denied Mr. Maldonado the relief he requested. (A912). Despite obtaining a conviction that is directly contrary to settled law, the People now argue that (1) Mr. Maldonado’s challenge is unpreserved and (2) due to phantasmagoric “evolutions” in the criminal law, the People need not prove all the element of this crime. The People are mistaken on both points. A. This Court may review Mr. Maldonado’s reliance arguments The People argue that Mr. Maldonado is precluded from making reliance arguments because the issue was not raised until after the verdict and is therefore not preserved. Alternatively, the People argue that Mr. Maldonado’s trial counsel did not provide ineffective assistance. Both arguments are without merit. First, the People argue that Hughes does not apply because Mr. Maldonado “could not properly have raised in his post-verdict motion [i.e., a CPL § 330.30 motion] a claim that the indictment was defective on the ground there was no evidence to support a finding that defendant committed larceny by false pretenses.” People’s Br. at 65; see also People v. Hughes, 22 N.Y.3d 44 (2013). While Hughes dealt with a tardy CPL § 210.20 motion, which “in the interest of justice” a trial court may “at any time before sentence, entertain and dispose of . . . on the Americas 91218825 19 merits,” CPL § 255.20(3), its holding is not so limited. Hughes rather stands for the proposition that an issue is preserved when (1) a defendant raises it in a § 330.30 motion, even if for the first time, (2) the trial court decides the motion on the merits, and (3) the delay does not prejudice the People. See 22 N.Y.3d at 49. Indeed, when all three Hughes elements are satisfied, a defendant claiming legal error has made this error known “at [a] subsequent time when the court had an opportunity of effectively changing” the error. CPL § 470.05(2). Mr. Maldonado’s opening brief showed that all three elements were met here. See Opening Br. at 48. And the People never contended otherwise. Now the People argue that, had they been apprised of Mr. Maldonado’s arguments on reliance, they would have again changed their theory of larceny. People’s Br. at 75-76. But this is a disingenuous argument, as the People had already cast around earlier in the case searching for a theory that would allow them to bring first- degree grand larceny charges. The facts of this case cannot support any theory of larceny other than larceny by false pretenses and the People conceded as much at trial, noting that larceny by false pretenses was their “exclusive theory.” (A671, A784-85) There was no possible prejudice to the People’s position. The Court may therefore find this issue preserved. Americas 91218825 20 Alternatively, even if the Court finds that this issue is not preserved, the Court may review it due to trial counsel’s ineffectiveness. Long-standing precedent requires reliance by the owner of property as a necessary element of larceny by false pretenses. See, e.g., Termotto, 81 N.Y.2d at 1009 (an element of larceny by false pretenses is that “the victim relied in parting with the property”) (emphasis added); People v. Chaitin, 94 A.D.2d 705, 705 (2d Dept. 1983) (owner of property must be induced by the false representations); People v. Piscotta, 98 A.D.2d 926, 927 (3d Dept. 1983) (holding that “one element that must be proved by the People to support a conviction is reliance by the owner of the property”) (emphasis added). Trial counsel’s failure to argue this issue renders his assistance ineffective. See People v. Nesbitt, 20 N.Y.3d 1080, 1082 (2013); People v. Norfleet, 267 A.D.2d 881, 884 (3d Dept. 1999); People v. Butler, 94 A.D.2d 726, 726 (2d Dept. 1983). Mr. Maldonado’s trial counsel admitted this and even requested to be replaced due to his ineffectiveness on the issue. (See Court Proceedings, A906) (“[W]e feel like there is a strong argument or actually that argument, as a matter of law, had it been raised would have been granted . . . And, therefore, we fail to deal with that, any response would not necessarily include, in effect, assistance of counsel’s argument [sic]. That is an argument that I cannot make against myself. Americas 91218825 21 So, therefore, I would be asking the Court to relieve our office and assign 18B counsel[.]”) (Court Proceedings, A905). The People argue that an “attorney cannot be faulted for forgoing a futile motion” and that Mr. Maldonado’s trial counsel was not ineffective for failing to raise the reliance element because the People, despite calling it their “exclusive theory,” could have proven him guilty on another larceny theory, besides larceny by false pretenses, under PL § 155.05(1) or PL § 155.05(2). According to the People, Mr. Maldonado “obtained” or “took” property. See People’s Br. at 74-77. This contention is meritless. The People never proved that Mr. Maldonado “obtained” property because they never showed, and cannot show, that an actual transfer of title occurred. See, supra, Section I.B; see also Opening Br. at 29-38. Nor did the People ever prove that Mr. Maldonado “took” property because, as explained in Mr. Maldonado’s opening brief, their proof was insufficient to show Mr. Maldonado “exercised dominion and control over the property . . . in a manner wholly inconsistent with the owner’s continued rights.” Jennings, 69 N.Y.2d at 118; see also Opening Br. at 27-29; supra, Section I.C. And the People assume, in arguing futility, that their interpretation of “purported” is correct. This is circular reasoning, and in any event, the People have misinterpreted “purport.” See, supra, Section I.A. Americas 91218825 22 Accordingly, Mr. Maldonado’s trial counsel may be faulted for his failure to raise the reliance argument. If successful – and based on the case law, it should have been successful – this argument would have disproved a necessary element of larceny by false pretenses (the only remotely workable theory of larceny available to the People on these facts) and precluded a conviction. This Court therefore may review Mr. Maldonado’s arguments that the People failed to prove every element of grand larceny by false pretenses because the People failed to prove that the owners of 242 South 2nd Street relied on any of Mr. Maldonado’s representations. B. The People’s arguments fail to prove that reliance is not an essential element of larceny by false pretenses A conviction for larceny by false pretenses requires, and historically has always required, proof that the owner of property relied on false pretenses in parting with her property. See People v. Norman, 85 N.Y.2d 609, 618 (1995); see also People v. Baker, 96 N.Y. 340, 348 (1884). “With regard to larceny by false pretenses, the Penal Law incorporates the historical elements that were applied at common law.” People v. Norman, 85 N.Y.2d 609, 619 (1995); see People v. Drake, 61 N.Y.2d 359, 362 (1984) (the Penal Law “expressly incorporates the common-law definition”). Accordingly, to this day, the historical element of reliance by the owner remains an element of larceny by false pretenses. See People v. Termotto, 81 N.Y.2d 1008, 1009 (1993) (quoting People v. Drake, 61 Americas 91218825 23 N.Y.2d 359, 362 (1984)); People v. Churchill, 47 N.Y.2d 151, 155 (1979); see also People v. Chaitin, 94 A.D.2d 705, 705 (2d Dept. 1983). Here, the People failed to prove reliance by the owner of 242 South 2nd Street, and so Mr. Maldonado’s conviction for grand larceny cannot stand. Faced with this deficiency, the People assert that the elements of the crime of larceny by false pretenses have “evolved,” so that “reliance by the owner . . . is no longer always required.” People’s Br. at 68. The People are wrong. They disregard the precedents cited above, they fail to adduce any precedent to support their newly minted theory, and they advance a theory manifestly unfair to Mr. Maldonado and other criminal defendants, who cannot anticipate the People’s post- hoc “evolutions.” The People quote People v. Foster, 73 N.Y.2d 596, 604 (1989), for the proposition that the Penal Law includes “every common-law larceny offense, as more expansively defined by the Legislature (Penal Law § 155.00).” People’s Br. at 68. But Foster merely supports the obvious proposition that the Legislature “more expansively defined” the common-law larceny offenses when codifying them. For instance, “by including ‘real property’” in the definition of “property,” the Legislature “somewhat expand[ed] the scope of the crime.” Denzer & McQuillan, Commentary, MCKINNEY’S CONSOL. LAWS OF N.Y., Book 39, P.L. § 155.00. This in no way supports the People’s contention that the scope of larceny Americas 91218825 24 “[is] not static, but rather [has] evolved, and continue[s] to evolve, with the needs of society and changing circumstances.” People’s Br. at 67. Rather, the opposite is true. It is the Legislature that controls the scope of larceny. It did so by creating four new “purely statutory offenses” in current Penal Law § 155.05(2)(b)-(e), People v. Foster, 73 N.Y.2d 596, 605 (1989), and somewhat expanded the scope of the historical offenses through the definitions section. When the Legislature intends to expand the scope of the crime, it knows how to do so explicitly. No amorphous “evolution” is required, and none has occurred in connection with the statute at issue in this case. Similarly, the People’s reliance on People v. Alamo is misplaced. 34 N.Y.2d 453, 459 (1974). The People quote this case for the proposition that “not since 1942 have we in this jurisdiction been strictly bound to the ancient common-law concepts of larceny.” People’s Br. at 68. That proposition is correct, but, again, does not support the People’s theory. Prior to 1942, the “quite fine” distinctions between the four traditional forms of theft at common law led to great difficulties in pleading and proof. Denzer & McQuillan, supra, P.L. § 155.05. To remedy these difficulties, in 1942 the Legislature defined larceny in broad terms at section 1290 of the former Penal Law, “permit[ing] conviction upon pleading and proof charging and establishing ‘larceny’ regardless of the basic common law offense underlying the particular Americas 91218825 25 case.” Id. In that sense, section 1290 of the former Penal Law liberated the courts from the “ancient common-law concepts of larceny,” for pleading purposes at least. But, while the 1942 legislation “eliminat[ed] the subtle and confusing distinctions that had previously differentiated the various types of theft,” it was not “designed to, and did not, broaden the scope of the crime of larceny or designate as criminal that which was previously innocent.” People v. Karp, 298 N.Y. 213, 216 (1948). Only in 1965, with the drafting of the new Penal Law, did the Legislature expand the scope of larceny. Alamo, like Foster, therefore found an expansion of larceny only through the new statutory language. Neither case supports the People’s theory of a free-floating, constantly “evolving” (or rather “expanding”) scope of the crime since 1942. Similarly, the People’s reliance on People v. Olivo is misplaced. 52 N.Y.2d 309, 315-19 (1981). The People cite this case to support their assertion that “[t]he definitions and principles of common-law larceny … are not static, but rather have evolved, and continue to evolve, with the needs of society and chancing circumstances.” People’s Br. at 67. Of course larceny did evolve at common law, over a period of hundreds of years; and indeed Olivo traces “the development of the common-law crime of larceny and its evolution into modern statutory form.” Olivo at 52 N.Y.2d 315 (emphasis added). But Olivo nowhere states that the law Americas 91218825 26 of larceny continues to morph now that it has been comprehensively defined by statute: “common-law larceny” has indeed evolved, but it does “continue to evolve” for the simple reason that it, having been codified, common-law larceny no longer exists. In fact, Olivo goes to great length to show that the law had already evolved to support the outcome in the case when it was codified: “Modern penal statutes generally have incorporated these [common-law] developments under a unified definition of larceny.” Olivo at 52 N.Y.2d 317. With no case law supporting their self-serving and fanciful theory, the People cite to Professor LaFave’s authoritative treatise. See People’s Br. at 69. But Professor LaFave’s treatise contradicts the People’s theory because it includes an owner’s reliance as a necessary element of larceny by false pretenses: For false pretenses it is necessary that the swindler’s misrepresentation cause the victim to pass title to his property or money to the swindler. Looking at the matter from the point of view of the victim, the same thought may be expressed thus: for false pretenses it is required that the victim pass title to his property in reliance upon the swindler’s misrepresentation. Wayne R. LaFave, 3 Substantive Criminal Law 122 (2d ed. 2003) (emphasis in the original) (footnotes omitted). In fact, Professor LaFave cites People v. Sanders, 67 Cal. App. 4th 1403 (1998), with approval, noting that a “defendant who forged deeds and caused them to be recorded [was] not guilt[y] of theft of real property through false pretenses, as [the] defendant had no contact with any property owner.” Id. at 122 n.37. Americas 91218825 27 On this point, Professor LaFave’s treatise does not stand alone. Other scholarly sources confirm that the People’s theory is wrong. See, e.g., Rollin M. Perkins & Ronald N. Boyce, Criminal Law 378 (3d ed. 1982) (“it is essential to show that the owner was misled by the misrepresentation”) (emphasis added). Alternatively, the People also argue that the Model Penal Code has eliminated the element of reliance by the owner. See People’s Br. at 71-72. Their only support for this contention, however, is an unpublished opinion from Iowa. See State v. Pittman, 2015 Iowa App. LEXIS 81 (Ct. App. Feb. 11, 2015). Pittman characterizes the “theft by deception statute” in Iowa, based on the Model Penal Code, as a “catch-all crime to encompass the full and ever changing varieties of deception.” Id. at *17 (internal citation and quotation marks omitted). Whether this characterization correctly describes the Model Penal Code is debatable. See Opening Br. at 47 n.5. But it certainly does not accurately reflect New York’s larceny statute, which is not a “catch-all.” As this Court has made clear, “the broad wording of [Penal Law § 155.05(1)] is narrowed by its history and purpose.” People v. Foster, 73 N.Y.2d 596, 605 (1989). In fact, P.L. § 155.05(2) provides “an exhaustive list of conduct proscribed as larcenous under the Penal Law.” Id. at 605 n.4 (1989) (emphasis added). And no case from this Court “has held that a defendant could be convicted of larceny on the basis of subdivision (1), when the Americas 91218825 28 conduct had never been proscribed under subdivision (2) or any other provision of law.” Id. Finally and alternatively, the People argue that if reliance remains an element of larceny by false pretenses, then it is sufficient for anyone, whether he is the owner of the stolen property or not, to rely on defendant’s false representation. The People argue that the City Register, even though not the true owners of 242 South 2nd Street, somehow relied on Mr. Maldonado’s representations, and that this is sufficient to satisfy the reliance element of larceny. See People’s Br. at 70- 73. This is not the law. The law requires that the owner relied on Mr. Maldonado’s representations in parting with her property. See, e.g., Termotto, 81 N.Y.2d at 1009 (an element of larceny by false pretenses is that “the victim relied in parting with the property”) (emphasis added); People v. Piscotta, 98 A.D.2d 926, 927 (3d Dept. 1983) (holding that “one element that must be proved by the People to support a conviction is reliance by the owner of the property”) (emphasis added); People v. Chaitin, 94 A.D.2d 705, 705 (2d Dept. 1983) (an element of larceny by false pretenses is “that the owner of the property was induced by the representation”) (emphasis added).6 6 In any event, the City Register in no way relied on Mr. Maldonado’s representations. Contrary to the People’s argument, the City Register is at all times agnostic as to the contents of filings made with it, and does not rely on such filings for the truth of their assertions. (Bobrow, A547) (“We don’t look behind the paperwork that’s submitted, so that if a deed is submitted that says Jane Doe conveys the property to John Smith, as long as the documents are there and it’s properly notarized and acknowledged, we accept[.]”). Americas 91218825 29 Despite binding precedent to the contrary, the People argue that Termotto “stands for the proposition that, in considering the reliance element, the person to whom the false pretenses were made may be viewed broadly” and eliminates the need for reliance by the owner. People’s Br. at 74. This is incorrect. Termotto unambiguously states that it is “the victim” who must rely on the false pretenses for a conviction to be sustained. Termotto, 81 N.Y.2d at 1009. The issue in Termotto was who could be considered “the victim” when “the victim” was not an actual person, but a legal entity (in that case a “bank doing business as a corporation”). Id. The Court concluded that any agent involved in the relevant transaction, and not necessarily just “the corporate agent who granted final loan approval,” could be “the victim,” and reliance by any such agent is sufficient. Id. at 1009-10. Termotto’s holding therefore does not stand for the proposition that the People suggest. And, in any event, that detail is irrelevant to the present case, where it is undisputed that the City Register is not an agent of the HDFC. POINT III The People failed to prove that Mr. Maldonado possessed or uttered a forged instrument, an element of criminal possession of a forged instrument in the second degree On the criminal possession of a forged instrument count, the People argue both that Mr. Maldonado did not preserve this issue for appeal and that signing Our system of recordation merely provides notice to potential purchasers of any and all existing claims. Americas 91218825 30 one’s own name and implicating one’s own authority may constitute a forgery. The People are wrong. A. This Court may review Mr. Maldonado’s arguments that the quitclaim deed he filed was not a forgery At trial, Mr. Maldonado argued that the People failed to prove this count because he never possessed a forged deed. (See, e.g., A642-43). This is the same argument that Mr. Maldonado advanced in the Appellate Division and in his opening brief before this Court. Even if the reasoning has changed slightly since trial, the argument remains the same: there cannot be a conviction where there is no forgery and Mr. Maldonado’s homemade quitclaim deed was not a forgery. Accordingly, Mr. Maldonado preserved this argument for the Court’s review. C.f. People v. Hawkins, 11 N.Y.3d 484, 493 (2008) (finding a challenge unpreserved when it could have addressed several different elements of a crime). Unlike Hawkins, Mr. Maldonado’s challenge addressed a single element and “alert[ed] the trial court to the argument now being advanced” – that Mr. Maldonado’s deed was not a forgery. See id. at 493. In the Appellate Division, the People conceded that this issue was preserved. They wrote: “[the People] accept[] the arguments of counsel at pages 642-43 of the record as sufficient to preserve the claim that the deed was not forged because counsel argued that defendant never intentionally committed the crime because he did not believe it was a forgery inasmuch as he signed his own name to it.” Americas 91218825 31 (People’s Appellate Division Brief, A947). The Appellate Division agreed, deciding this issue on the merits without ever mentioning preservation. (A3). And Mr. Maldonado’s opening brief to this Court advanced the same argument. Mr. Maldonado’s position was, and still is, that this charge is unsupported because the People never proved he possessed a forged instrument. Alternatively, to the extent this Court should consider that the issue is not preserved, Mr. Maldonado’s trial counsel was ineffective. It is well settled that a person cannot commit forgery by signing his own name and implicating only his authority. See, e.g., People v. Asaro, 94 N.Y.2d 792, 793 (1999) (“The proof in this case is legally insufficient to sustain defendant’s conviction for forgery in the second degree . . . defendant signed his own name . . . and did not represent himself to be anyone other than [himself].”); People v. Levitan, 49 N.Y.2d 87 (1980). Trial counsel’s failure to argue that the People did not prove an essential element of the crime was not a strategic decision, but an impermissible lapse in effectiveness.7 See People v. Nesbitt, 20 N.Y.3d 1080, 1082 (2013); People v. Norfleet, 267 A.D.2d 881, 884 (3d Dept. 1999); People v. Butler, 94 A.D.2d 726, 726 (2d Dept. 1983). 7 The People are also incorrect to suggest that defense counsel could be effective and still ignore the elements of a lesser count in the indictment. This is not a case where counsel might have chosen to concede a lesser offense as a matter of tactics. The record is clear that counsel was trying to win on both the forgery count and the larceny count. In order to do so, he should have been familiar with the elements of all counts facing his client, not just the top charge or charges. Americas 91218825 32 B. The People failed to prove that an individual commits forgery by signing his own name when he implicates only his own authority On the merits, the People advance two arguments: (1) signing the word “Owner” next to his name somehow transformed Mr. Maldonado into a separate person and (2) the homemade quitclaim deed was the creation of a corporation rather than an individual human being. In both, the People try to create artificial disparity between the ostensible and actual maker of Mr. Maldonado’s homemade quitclaim deed. In both, the People attempt to re-litigate People v. Levitan. And in both, the People’s arguments fail. The People first contend, as they did in the Appellate Division, which agreed, that “Fernando Maldonado – Owner” is a new, fictional person who somehow has an ownership interest in the HDFC, while “Fernando Maldonado” is an actual person with no such interest. Thus, according to the People, through the mere act of signing “Owner” on the homemade quitclaim deed, Mr. Maldonado created a legally discernible disparity between the actual maker (“Fernando Maldonado,” the real person) and the ostensible maker (“Fernando Maldonado – Owner,” a fictional person with an ownership interest in 242 South 2nd Street). This is not the law. In fact, the People’s theory directly contradicts a well-established body of law. In Levitan, the People advanced a similar thesis. 49 N.Y.2d at 91-92. In that Americas 91218825 33 case, Molly Levitan signed three deeds which claimed to transfer title to land that she did not own. Id. at 89. “She signed her own name to each of the deeds, and no pretense was ever made that the signatory was anyone other than defendant Molly Levitan.” Id. The People argued that under those facts, “the ostensible drawer of the deed should be deemed to be the true owner of the property rather than the person whose name appears upon the deed.” Id. at 91-92. This Court disagreed and found that the ostensible drawer is “the person who, from the face of the instrument, would appear to be its drawer,” not the actual person or corporation “who in fact has the power to create such an instrument.” Id. at 92. And, as Mr. Maldonado’s opening brief explains, this is still the law. See Opening Br. at 52-53. This case is indistinguishable from Levitan. Mr. Maldonado signed a deed to property that he did not own. But “no pretense was ever made that the signatory was anyone other than” Fernando Maldonado. Id. at 89. And the People now re- hash the failed argument that this constitutes a forgery, stating that “the ostensible drawer of the deed should be deemed to be the true owner of the property [the HDFC] rather than the person whose name appears upon the deed [Fernando Maldonado].” Id. at 91-92. The Court rejected that theory in Levitan and should reject it again here. Recognizing that Levitan mandates reversal of the forgery count, the People attempt to distinguish it. The People argue that Levitan does not apply here Americas 91218825 34 because Levitan did not address (1) “whether a corporate instrument signed by a person who had no authority whatsoever to act on behalf of the corporation is a forged instrument” and (2) “whether an instrument containing a signature with a false title is a forged instrument.” See People’s Br. at 88-89. Neither argument is persuasive. First, Mr. Maldonado’s quitclaim deed was the creation of an individual: Mr. Maldonado himself. The quitclaim deed’s “Grantor” was “Fernando Maldonado,” not a corporate entity. The People’s theory that the homemade deed is somehow a “corporate instrument” is unsupported by the law or the facts of this case – the deed contained no indicia of such a document. In any event, this is a distinction without a difference. In Levitan, the “true owners of the property [that Ms. Levitan signed deeds for] were and remain[ed] unknown.” Levitan, 49 N.Y.2d at 89. It is possible that a corporation, as here, owned the land. But it does not matter. The identity of the true owner (corporation or individual) was not a relevant factor in Levitan and the true owner of 242 South 2nd Street is not a relevant factor here. Second, Mr. Maldonado’s use of the word “Owner” makes no difference. This Court in Levitan already considered the issue. In that case, “[t]he People’s argument [was] based on the fact that each deed contains a provision stating that the named grantor had title to the property.” Id. at 91. Ms. Levitan therefore held herself out to the world as the property’s “Owner” by signing those deeds. The Americas 91218825 35 facts here, where Mr. Maldonado explicitly wrote the word “Owner,” are no different. Furthermore, the People’s effort to distinguish Levitan misses the point. The gravamen of forgery is assuming another person’s identity and authority. That never occurred in Levitan or here. Both Ms. Levitan and Mr. Maldonado claimed only to be themselves while signing deeds for property they did not own. This Court held that Ms. Levitan did not commit forgery through her actions. The result here should be no different. Alternatively, as a slight variation of their first argument, the People argue that Mr. Maldonado’s homemade quitclaim deed was a corporate instrument, not the creation of an individual. Thus, the People argue, there is disparity between the actual maker (“Fernando Maldonado” the person) and the ostensible maker (the HDFC, as represented by “Fernando Maldonado – Owner”). The People repeatedly argue that Mr. Maldonado created the illusion of agency between himself and the HDFC by signing the word “Owner” on the quitclaim deed, which – according to the People – could only implicate the authority of the HDFC, the true owner of 242 South 2nd Street. See, e.g., People’s Br. at 87 (“‘Fernando Maldonado – Owner’ (of the ownership interest being conveyed) did not exist, and therefore, the deed misrepresented the identity of its maker.”); id. at 89 (“[T]he deed that defendant possessed did not merely misrepresent that he was the owner, Americas 91218825 36 it created, with the signature, an entirely fictional person, namely, ‘Fernando Maldonado – Owner.’ (of HDFC)”). This argument fails as a matter of law and fact. As explained above, it is contrary to this Court’s holding in Levitan. When an individual signs his name to a deed, he implicates only his own authority and does not commit a forgery. The Court therefore should reject this theory as contrary to the law. This argument is also unsupported by the facts of the case. The signature line of the homemade quitclaim deed is reproduced below. (Quitclaim Deed, A855) (red boxes added). First, the People’s suggestion that “Fernando Maldonado – Owner” implicates an actual ownership interest in the HDFC is unsupportable. The word “Owner” appears after the name of the “Grantee,” not the “Grantor.” Thus, by signing “Owner,” Mr. Maldonado could not have been implicating the authority of the actual owner, the HDFC. Instead, the “Grantor” is only, as the People concede, “Fernando Maldonado,” the person. See, e.g., People’s Br. at 87 (“Although defendant was ‘Fernando Maldonado,’ he was not ‘Fernando Maldonado – Owner.’”). Americas 91218825 37 Second, the People’s suggestion that the deed was signed by a corporation is unfounded. The record contains no evidence that Mr. Maldonado, by signing “Fernando Maldonado” in the capacity of “Grantor” implicated the authority of, or an agency relationship with, the HDFC. And no particular corporate formalities or identifying features, stamps or authorizations were indicated on the face of the homemade quitclaim deed. See Quitclaim Deed (A854-55). Finally, the People argue that this is a case of first impression: whether a person may be guilty of forgery for implying a corporate relationship where, in reality, no relationship exists. See People Br. at 83. Because, as explained above, the People base their argument upon an incorrect factual allegation and because the quitclaim deed was unmistakably the creation of an individual, not a corporation, the Court need not address it. POINT IV The People failed to prove that Mr. Maldonado was “dangerously close” to receiving the MFC loan The People argue that Mr. Maldonado came “dangerously near” to committing first-degree grand larceny because he took “numerous steps toward obtaining a loan from MFC under false pretenses.” People’s Br. at 93. Yet the People’s own recitation of the facts proves that Mr. Maldonado took only preliminary steps and never came dangerously close to success. See People’s Br. Americas 91218825 38 at 21-24. In fact, MFC would not even consider closing the loan until Mr. Maldonado: (i) secured an attorney – as the People note, Ms. Jody Saltzman, MFC’s closing attorney, “informed MFC that defendant’s first attorney had stopped communicating with her and that defendant’s second attorney had ultimately declined to continue representing defendant.” People’s Br. at 21; (ii) submitted the requisite title documents and title insurance – “Saltzman received a report indicating that the property was owned by HDFC” and not by Mr. Maldonado. People’s Br. at 22; (iii) submitted the HDFC’s corporate bylaws and organizational documents – the building’s attorney stated that “Del Mar Management company was still the management company for HDFC” and “provided Saltzman with the names of HDFC’s officers and board members; defendant was not an officer or board member.” People’s Br. at 22-23; (iv) offered proof that he owned the building – Ms. Andrade told MFC that “‘Fernando has no right, he doesn’t own the property’” and the building’s attorney confirmed to MFC that “defendant did not own the building.” People’s Br. at 22-23; (v) provided copies of the tenants’ leases – Del-Mar Management, the HDFC management company, “provided Saltzman with a copy of the authentic rent rolls,” which of course Mr. Maldonado could not do. People’s Br. at 23; and (vi) resolved with Mr. Bond who had ultimate authority to speak for Mr. Maldonado – Mr. Maldonado’s own agent, “who had a power of attorney to act on defendant’s behalf” told Ms. Saltzman to “stop all work on the loan.” People’s Br. at 23, 24. Id. Thus, as a matter of law on the People’s own evidence, Mr. Maldonado’s acts were far from “potentially and immediately dangerous.” People v. Mahboubian, 74 N.Y.2d 174, 191(1989). Americas 91218825 39 The People try to bypass this problem by detailing the various preliminary steps that Mr. Maldonado took to obtain the MFC loan and arguing that Mr. Maldonado “presumably would not have done all that unless he subjectively believed that he could persuade MFC to give him the loan, and unless he was committed to seeing to fruition his endeavor to obtain the mortgage.” People’s Br. at 95. But New York courts have consistently held that “[i]n addition to proof of intent to commit a specific crime, the statute requires a showing that defendant committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained.” People v. Warren, 66 N.Y.2d 831, 832 (1985); see also People v. Acevedo, 140 A.D.2d 846, 848 (3d Dept. 1988) (“That defendant was financially prepared and motivated to [commit a crime] does not provide sufficient evidence to support a conviction for an attempt.”). Ms. Saltzman, MFC’s outside counsel, testified that Mr. Maldonado’s application was rife with red flags and plainly inadequate, i.e., the few documents that Mr. Maldonado actually submitted to MFC included “random stuff that really didn’t have any meaning….” See Opening Br. at 13-14. Thus, once again, the People’s own witness confirmed that Mr. Maldonado’s acts did not bring his project dangerously near completion. Ignoring Ms. Saltzman’s testimony, the People, relying on Mahboubian, 74 N.Y.2d at 190-91, urge the Court to focus solely on the initial steps Mr. Americas 91218825 40 Maldonado took to obtain the MFC loan. See People’s Br. at 94 (“[T]he determination of ‘whether a defendant has come dangerously near to completing a crime [is] focused primarily on the conduct of the defendant, not his or her intended victim.’”). In Mahboubian, the defendants staged a theft of alleged antiques in order to make a fraudulent insurance claim. 74 N.Y.2d at 190-91. The Court upheld defendants’ conviction for attempted grand larceny because the defendants’ “more than substantial” acts – securing insurance, arranging for the shipment and storage of the alleged antiques, and hiring thieves who broke into a warehouse and began removing the antiques – were “potentially and immediately dangerous” and “had gone to the extent of placing it in [defendants’] power to commit the offense unless interrupted.” Id. at 191, 193.8 Neither circumstance exists in this case. Quite the opposite: Mr. Maldonado was still many steps removed from finalizing his incomplete loan application – indeed, prior to his arrest, he had only submitted to MFC a collection of “random stuff that really didn’t have any meaning.”9 (Saltzman A265-266). Accordingly, 8 The Court further observed that, at the time of the Mahboubian defendants’ apprehension, all that remained to complete their project was the “comparatively minor” act of reporting the ostensible theft to the insurer. Id. at 191-92. 9 The People’s reliance on People v. Denson, 26 N.Y.3d 189 (2015) is likewise misplaced. The defendant there was charged with a very different crime – attempted kidnapping through a child’s acquiescence – and had repeatedly taken all of the steps necessary to commit the crime, i.e., all that remained was procuring the victim’s consent to his various proposals. As this Court noted in Mahboubian, “[w]here the boundary line between preparation and attempt should be placed differs with different crimes.” Mahboubian 74 N.Y.2d at 191, citing People v. Werblow, 241 N.Y. 55, 61 (1925). Americas 91218825 41 People v. Acevedo, 140 A.D.2d 846 (3d Dept. 1988), is squarely on point. There, the defendant was arrested in Albany with $28,000 and gave a statement that he intended to travel to New York City the next day and purchase at least three- quarters of a kilogram of cocaine. Id. at 847. The Third Department found these facts insufficient to support the charge of attempted criminal possession of a controlled substance because “numerous contingencies as to time, place and opportunity stood between defendant at the time of arrest and the contemplated purchase.” Id. at 848. Here, as in Acevedo – which the People tellingly ignore – the evidence showed that Mr. Maldonado still needed to take a number of significant steps before he could receive any loan funds from MFC. The People’s evidence also made clear that as soon as Ms. Saltzman actually reviewed Mr. Maldonado’s loan application, she immediately concluded that “this was one of the most ridiculous applications she had seen [with] red flags everywhere” (Salzman A646) and that Mr. Maldonado was not entitled to draw any money against the HDFC. Mr. Maldonado did not come dangerously close to the completion of the crime and thus his conviction for attempted first-degree grand larceny should be reversed. Americas 91218825 42 POINT V The People failed to establish that the value of the loan was more than $1 million A. This Court may review Mr. Maldonado’s arguments as to the value of the loan Although trial counsel did not specifically argue that the loan’s value was less than $1 million, the Court may review this issue due to trial counsel’s ineffectiveness. Grand larceny in the first degree requires a taking of property valued in excess of $1 million. See Penal Law § 155.42. The People argue that counsel’s failure to raise the valuation issue is justifiable because (i) “counsel cannot be faulted for forgoing a futile motion” and (ii) raising this issue would have buried the stronger claim that counsel did raise, i.e., that the evidence did not establish that Mr. Maldonado came dangerously close to obtaining an MFC loan. See People’s Br. at 107. The People’s arguments are without merit. First, as Mr. Maldonado argued in his opening brief, the evidence adduced at trial showed that Mr. Maldonado could only obtain an initial draw of $907,500. There was no strategic or otherwise justifiable reason for defense counsel’s failure to challenge an essential, obvious and unproved element of the attempt charge. This argument was far from futile on the facts of this case. And if advanced and successful at trial it would have Americas 91218825 43 resulted in reduction of the second-highest count in the indictment from a C felony to a D felony. Second, the People oddly suggest that when one argument may seem stronger or possibly provide more sweeping relief if successful, counsel can then simply forgo good alternative arguments and still be deemed effective. See People’s Br. at 107-108. This is not correct. See People v. Turner, 5 N.Y.3d 476, 484 (2005) (rejecting claim that defense counsel was justified in omitting an argument in favor of a perceived better argument because it “ignore[s] the obvious: Counsel could have made both arguments”). Particularly in a case as fact- dependent and technical as Mr. Maldonado’s, an alternative valuation argument should have been apparent to, and made by, defense counsel. The failure to do so constituted ineffective assistance of counsel. As a result, Mr. Maldonado did not receive meaningful representation with regard to the attempted grand larceny charge and this Court may therefore review Mr. Maldonado’s arguments that the value of the MFC loan did not exceed $1 million. See Opening Br. at 68. B. The value of the loan did not exceed $1 million In his opening brief, Mr. Maldonado argued that the People failed to prove that the value of the MFC loan exceeded $1 million because he only stood to receive $907,500 when the loan closed, with the balance being set aside in a Americas 91218825 44 separate and contingent construction reserve. See Opening Br. at 66-68. Mr. Maldonado also explained that the construction reserve was in fact a second loan whose potential issuance, at some unknown future date, depended on his proving to MFC that the initial loan proceeds had been invested in improvements to the HDFC. Id. In response, the People first argue that Mr. Maldonado was already guilty of attempted first-degree grand larceny when he merely submitted his loan application for $10 million in June 2008, and MFC counter-offered with $7 million. See People’s Br. at 103. Acceptance of this odd theory would have profound implications for anyone seeking to negotiate a business transaction. In any event, as set forth in point IV, supra, Mr. Maldonado was not dangerously near to obtaining funds from MFC when, at this preliminary stage, MFC merely accepted Mr. Maldonado’s loan application (in exchange for hefty processing and other fees). See pp. 38-42; see also Opening Br. at 60. Indeed, Ben Rutkevitz, an MFC loan officer, testified that decisions on Mr. Maldonado’s loan at that juncture were “not binding.” See id. The People alternatively argue that if the value of the loan were to be measured by MFC’s final offer, its value exceeded $1 million even though MFC only agreed to disburse $907,500 (subject to the deal closing after due diligence and Mr. Maldonado’s fulfillment of the various outstanding MFC prerequisites). Americas 91218825 45 See People’s Br. at 104. The People contend that because Mr. Maldonado stated that he intended to invest the initial $907,500 disbursement in HDFC renovations, Mr. Maldonado would have necessarily received the funds held in reserve. See id.at 104-05. The People, however, ignore Mr. Rutkevitz’s testimony that, in order to receive the construction reserve, Mr. Maldonado would need to submit proof of the renovations, including expenses and bills. See Opening Br. at 67. In other words, the evidence at trial did not show – nor do the People argue now – that Mr. Maldonado was “dangerously near” receipt of the $600,000 construction reserve, which Mr. Maldonado may have been eligible to receive upon taking numerous additional steps at some unknown future date. In reality, Mr. Maldonado was a great deal further away from receiving the construction reserve than he was from receiving the initial $907,500 loan, which itself was, of course, subject to numerous further steps. In any event, even if Mr. Maldonado used the $907,500 to renovate the building, provided satisfactory proof of this to MFC and received another $600,000 from it, the latter amount should be considered a new loan. As such, the attenuation in time and changed circumstances would require a new and separate accusatory instrument to bring this charge. Cf. People v. Watt, 81 N.Y.2d 772, 774 Americas 91218825 46 (1993) (accusatory instrument must contain a sufficiently precise time-frame allegation). The People also argue that, because Mr. Maldonado was “actively seeking to sell the building” before he applied for the MFC loan, he “intended to perform the renovations to increase the value of the building so that he could later sell the building at a higher price.” People’s Br. at 105. But even if this were the case, it is a reasonable inference that Mr. Maldonado would have sold the building at the first possible opportunity. In the unlikely event that Mr. Maldonado somehow managed to sell a building he did not own (after plowing in the $907,500 in loan proceeds to renovate it), he still would have only stolen the $907,500 in loan proceeds. The fact that such renovations might lead to a higher market value of the building is irrelevant to the question of the value of the initial loan proceeds. Thus, even if the Court determines that Mr. Maldonado was dangerously close to obtaining the initial draw of $907,500 from MFC, which, for the reasons sets forth in point IV, supra, it should not, the People have not proved that the value of the MFC loan exceeded $1 million. CONCLUSION For the reasons stated in Mr. Maldonado’s opening brief and above, Fernando Maldonado’s convictions for grand larceny in the first degree (count 1), criminal possession of a forged instrument in the second degree (count 4), and Americas 91218825 47 attempted grand larceny in the first degree (count 2) should be vacated and the indictment dismissed. Alternatively, as to attempted grand larceny in the first degree (count 2), the count should be reduced to attempted grand larceny in the second degree. COURT OF APPEALS FOR THE STATE OF NEW YORK -------------------------------------------·-·--------------}{ THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- FERNAN DO MALDONADO Defendant-Appellant. -----------------------------------------------------------}{ STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) AFFIDAVIT OF SERVICE APL-20 15-00173 Carrol Marshall, being duly sworn, deposes and says: that she resides in Elmsford, New York; that she is over the age of twenty-one years and that she is not a party to this proceeding. That on the 261h day of May 2016, deponent caused to be served by hand three (3) copies of the REPLY BRIEF FOR DEFENDANT-APPELLANT upon the following party: Hon. Kenneth P. Thompson Attn: Solomon Neubert, Appeals Bureau Kings County District Attorney 350 Jay Street, 19111 Floor Brooklyn, NY 11 20 I an address designated by said attorneys for that purpose . S~rn to before me this ~1 6'ay of May, 2016 f~i~ ~ - Arsl~ Notary Public PATRICIA A. ASHMAN Notary Pubflo, State of New Yortr No. OtASetSM« c.ttJ~ In Bronx County , eomm...= Flied rn New York County · ex,.,.. December 11, 2011 Carrol Marshall