Opinion
November 13, 1957
Appeal from the Seneca County Court.
Present — McCurn, P.J., Vaughan, Kimball, Williams and Bastow, JJ.
Judgment of conviction reversed on the law and facts and indictment dismissed. Memorandum: The Grand Jury of Seneca County, sitting in conjunction with the September 1952 Term of the Supreme Court, returned a sealed indictment consisting of three counts against the appellant. The first two counts charge appellant with fraudulently secreting personal property, contrary to section 940 of the Penal Law. The third count charges the crime of fraudulently selling personal property, contrary to section 940 of the Penal Law. The indictment was duly transferred to County Court for disposition. Upon arraignment, the defendant entered a plea of not guilty. The case was thereafter moved for trial on November 12, 1952. During the trial the third count of the indictment was dismissed upon motion of the District Attorney. The jury returned a verdict of guilty as charged on the remaining two counts of the indictment. Appellant urges various grounds for reversal. We need consider only one. It appears without contradiction that appellant was in debt and had given two chattel mortgages covering the property alleged to have been fraudulently secreted to secure payment of a judgment in the sum of $4,501.20 recovered against him by the complaining witness Frank J. Kuleso. On April 28, 1952 the appellant was adjudicated a bankrupt and title to all his property passed to the trustee on that day. Both counts first and second of the indictment charge "That the defendant * * * on or about the 14th day of June, 1952, with intent to defraud one Frank J. Kuleso, did secrete certain personal property". This date of June 14, 1952 was nearly two months subsequent to the adjudication in bankruptcy. Under such circumstances we feel there was insufficient proof to establish fraudulent concealment of the property alleged in the indictment to have been fraudulently concealed on June 14, 1952. The record is barren of any evidence of criminal intent to defraud necessary to convict defendant of the crime charged. (See People v. MacDougall, 275 App. Div. 1068.) All concur.