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New York Scheme to Defraud Charges Explained

By Spodek Law Group | May 16, 2023
(Last Updated On: July 28, 2023)

Last Updated on: 28th July 2023, 07:21 pm

Understanding New York’s Scheme to Defraud Charges

Unlike episodic or individual acts designed to defraud or obtain property, New York’s Scheme to Defraud charges apply to a pattern of behavior that occurs as part of a cohesive ongoing system. These charges emphasize the need to reveal a deceitful intention in a defendant’s acts, with fraudulent acts sharing one common element: achieving the intended purpose of committing fraud.

Grading New York’s Scheme to Defraud Charges

New York features three Scheme to Defraud categories:

Scheme to Defraud in the First Degree (Penal Law 190.65)
Scheme to Defraud in the Second Degree (Penal Law 190.60)
Scheme to Defraud the State By Unlawfully Selling Prescriptions (Penal Law 190.70)

Scheme to Defraud in the Second Degree

According to New York Penal Law Section 190.60, a person is guilty of Scheme to Defraud in the Second Degree when they:

1. Engage in a systematic ongoing course of conduct,
2. Possess intent to defraud more than one person or obtain property from more than one person through false or fraudulent pretenses,
3. Successfully obtain property from one or more persons.

Proving Intent in a New York Scheme to Defraud Case

Intent, being the invisible operation of someone’s mind, cannot be proven by direct evidence. It must instead be determined through circumstantial evidence or inferred intentions. Establishing intent for Scheme to Defraud charges in New York involves proving that the accused engaged in conduct with intended results. Specifically, evidence that could establish intent includes:

– The defendant’s knowledge of dishonest practices
– The defendant’s preparation to manipulate the intended victim through deceptive means
– The defendant’s personal profits from the scheme

Examples of Cases Where Court Found Intent to Defraud
Theft of 10 million dollars from two corporate clients over two years (In re Arnstein, 960 N.Y.S.2d 640 (2013))
False statements to investors, establishing guilt by proving willing participation in the scheme, without needing to prove the scheme itself (People v. Rosado, 28 A.D.3d 215 (2006))

Identity of Victims in a New York Fraud Scheme

In a New York fraud scheme, the prosecution must prove the identity of at least one victim who lost property to the defendant. However, the identities of other intended victims are not required. This differs from Grand Larceny Prosecutions, in which the identity of each alleged victim must be proven – thus making Scheme to Defraud Prosecutions easier to charge than Grand Larceny by trick.

Penalties and Sentencing for Scheme to Defraud in the Second Degree

As a Class A Misdemeanor, this charge can result in up to 1 year in prison or up to 3 years probation. Additionally, fines of up to $1,000 or twice the wrongful proceeds of the offense may be imposed on a New York Scheme to Defraud in the Second Degree charge.

Scheme to Defraud in the First Degree

New York Penal Law Section 190.65 establishes that a person is guilty of a Scheme to Defraud in the First Degree when they engage in a scheme constituting a systematic ongoing course of conduct with intent to defraud, so obtaining property through false or fraudulent pretenses, representations, or promises in various contexts.

Again, proof of identity of at least one victim is required by the prosecution. If any vulnerable victim is involved, their identity must be verified by the prosecutor in addition to the primary identity requirement.

Defining the Vulnerable

A “vulnerable elderly person” in New York Penal Law Section 260.31 refers to an individual aged 60 years old or older experiencing physical, mental, or emotional dysfunction that prevents them from adequately providing for their health or personal care due to a related disease or infirmity.

Penalties and Sentencing for Scheme to Defraud in the First Degree

As a Class E Non-violent Felony, this charge can result in up to 1 1/3 to 4 years in prison, up to 5 years probation, or a conditional discharge. Fine up to $5,000, or twice the criminal gains from the offense, may be imposed.

Accessorial Liability in a New York Scheme to Defraud

New York Criminal Laws allow individuals to be charged for another person’s criminal conduct under the legal theory of “acting in concert”. If such an individual engages in a scheme to defraud with the same culpable mental state as the primary wrongdoer, the individual can be charged for the other person’s criminal conduct.

Scheme to Defraud the State by Unlawfully Selling Prescriptions

Although infrequently exercised due to overlapping federal and state charges, New York maintains a separate criminal charge for Unlawful Sale of Prescriptions with intent to defraud the state.

Facing New York Scheme to Defraud Charges

Individuals facing New York Scheme to Defraud charges should seek experienced criminal defense attorneys to navigate the complexities of these charges, which may result in a permanent criminal record and jail time.

New York Scheme to Defraud Charges Explained

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