Opinion
July 10, 1990
Appeal from the Supreme Court, New York County (Robert Haft, J.).
The proof herein showed the sale of unique, individually numbered (albeit counterfeit) lithographs to different buyers, at different times and at different prices. There was no pooling of funds, nor was there any substantial reliance by the purchasers upon the efforts of the promoters to produce profits but, rather, a reliance on the product itself to appreciate by itself over time. Despite defendant's exaggeration of the potential value, and his offer to exchange for set periods of time, the intrinsic value of the prints would rise or fall of their own accord and not solely on the basis of defendant's promotion (see, Securities Exch. Commn. v. Howey Co., 328 U.S. 293, 299). The defendant's promotion extended only to the immediate purchaser; the evidence did not show that he was promoting an investment scheme among a pool of investors so as to create any common enterprise (see, Securities Exch. Commn. v. Howey Co., supra).
Parenthetically, we note that while it may be argued these prints were commodities, as distinct from securities, such was not the theory of the indictment, the charge or the conviction. Accordingly, there is no reviewable issue of whether these prints would constitute commodities under the Martin Act. Further, since the sentences imposed on the conviction of the eight counts of fraud in the sale of securities were concurrent with the sentence imposed for the conviction for scheme to defraud, our reversal and vacatur as to the former does not mandate a remand for resentencing.
We have examined the remaining contentions by defendant and find them to be without merit.
Concur — Ross, J.P., Asch, Kassal, Wallach and Rubin, JJ.