| People v Schonfeld |
| 2009 NY Slip Op 09057 [68 AD3d 449] |
| December 8, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Norman Schonfeld, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered October29, 2004, convicting defendant, after a jury trial, of criminal possession of stolen property in thesecond degree (five counts), criminal possession of stolen property in the third degree (twocounts), grand larceny in the first degree, grand larceny in the second degree (nine counts), grandlarceny in the third degree, scheme to defraud in the first degree, perjury in the first degree (threecounts), forgery in the second degree (11 counts), criminal possession of a forged instrument inthe second degree (six counts), and violation of probation, and sentencing him, as a secondfelony offender, to an aggregate term of 16 to 32 years and ordering him to pay $5,966,389.61 inrestitution, modified, as a matter of discretion in the interest of justice, to reduce the sentence onthe count of grand larceny in the first degree to an indeterminate term of from 8½ to 17years and to direct that the sentences for each of the counts of perjury in the first degree runconcurrently with the sentences imposed on all other counts, and otherwise affirmed.
The court properly imposed restitution without a hearing. No such hearing is required unlessa defendant requests one, or the record lacks sufficient evidence to support a restitution finding(Penal Law § 60.27 [2]). Since defendant did not request a hearing until more than amonth after the court calculated the amount of restitution and imposed sentence, the request wasclearly untimely (see People v Seader, 278 AD2d 26 [2000], lv denied 96 NY2d806 [2001]). Furthermore, the amount of restitution ordered was based upon sufficient evidenceof loss, adduced during the trial (see People v Consalvo, 89 NY2d 140, 144 [1996]).
Under the particular circumstances presented herein, we find the sentence excessive to theextent indicated. Among the circumstances warranting a reduction in the sentence are thenonviolent nature of defendant's criminal conduct, defendant's age—he was 63 at the timeof trial—and the need to ensure that the sentence not be disproportionate to the sentenceimposed for similar crimes. In this latter regard, we agree with the dissenter that the "fairness ofthe criminal justice system requires . . . some measure of equality in the sentencesmeted out to defendants who commit the same or similar crimes" (People v Pedraza, 25 AD3d 394,397 [2006, Tom, J., dissenting], lv denied 7 NY3d 760 [2006]).Concur—Gonzalez, P.J., Friedman and McGuire, JJ.
Tom and Acosta, JJ., dissent in a memorandum by Tom, J., [*2]as follows: Defendant's sentence was not unduly harsh and wasclearly warranted under the circumstances of this case. The majority's rationale for sentencereduction is devoid of the mention of legitimate mitigating factors that warrant leniency and, byfailing to enforce a penalty that serves as a means of deterring others who might be similarlytempted, sends the wrong message to an industry in which trust is essential to the everydayconduct of business.
By Wall Street standards, where losses due to fraudulent schemes are measured in the tens ofbillions of dollars, this one is not large, involving only some $6 million. But the damagessustained by its victims, among whom is defendant's own son, are extensive and reach beyondmere financial loss to include the erosion of trust that is the foundation which underlies the entiresystem of commerce in diamonds. In a business where millions of dollars are committed on ahandshake and where a dealer's inventory can be carried off in the heel of a shoe, a particularlyhigh premium is placed on personal integrity, and the extent to which defendant profited by hisdeceit is a poor measure of the damage to the reputation of those dealers whose misplaced trustinadvertently injured and threatened the livelihood of many others. The damage inflicted bydefendant is compounded by the inappropriately lax penalty imposed as a result of the majority'sreduction of his sentence.
Defendant gained an extensive knowledge of the diamond business, beginning work in theindustry in 1956 and, in 1974, forming his own company, Norman Schonfeld Inc. Thecorporation dissolved in 1980, leaving its creditors with losses totaling some $4 million. As aresult, defendant was, by his own admission, "a controversial figure in the diamond industry"and resorted to the use of a pseudonym. Adopting the name Norman Baker "for the public,"defendant became a co-owner of Sidco Jewelry, a jewelry manufacturing company located onFifth Avenue in Manhattan in February 1999. Defendant's son, Ariel, then 27 years old, joinedthe firm as a salesman. Although Ariel had no experience in the diamond business, defendanttaught his son how to sell jewelry. Defendant told Ariel that he was obliged to employ apseudonym because he was reputed to have been involved with "some sort of diamond scam" inthe past.
Defendant's capacity to commit fraud is not simply a matter of reputation. On March 31,2000, he was convicted of third degree grand larceny in a scheme involving fictitious mortgages,in which he promised a business associate a return of 24% on an investment of $200,000.Defendant received a sentence of five years' probation and was ordered to make restitution in theamount of his victim's investment.
Around this time, defendant told Ariel that he was selling his interest in Sidco to his partner,and Ariel was dismissed as a salesman. Defendant then suggested to his son that they develop abusiness to give Ariel a "future" in the diamond trade. In June 2000, Anaka Design Ltd. wasincorporated, with Ariel listed as its president. Defendant ran the company's operations, this timeadopting the pseudonym "Norman Miller," and instructed Ariel to refer to him as a "familyfriend" who was helping Ariel "learn the industry," warning that if his involvement in thebusiness and his family relationship ever became known, "no one would ever do business" withAriel. Defendant paid Ariel a weekly salary in cash and controlled the business records and bankaccount statements, which Ariel never reviewed. Defendant obtained what Ariel describedas[*3]"false references" from persons who purported to have haddealings with Anaka Design that Ariel could provide to diamond brokers to obtain stones onconsignment or, in the parlance of the trade, "on memo."
Using a list furnished by defendant designating which diamond suppliers to use (and whichto avoid using), Ariel began contacting brokers, providing them with the references defendanthad obtained and telling them, as defendant had instructed, that Ariel was seeking diamondsAnaka would fabricate into jewelry for a "very high end clientele." By making payment fordiamonds within the time provided under the terms of the various consignment memos, Anakadeveloped a reputation as an ideal client, which enabled it to purchase ever more valuable stonesand extend the time for payment.
In February 2001, defendant sent Ariel to a diamond and jewelry trade show in Orlando,Florida. There, he was approached by one Moshe Rabinowitz, who explained that he operated acompany called Flextrade International, which dealt in precious metals. Rabinowitz stated thathe was interested in purchasing diamonds and gave Ariel his business card. After returning toNew York, Ariel gave the card to defendant. Some time later, defendant informed Ariel thatRabinowitz had placed an order for more than $5 million in large diamonds and produced a listof credit references provided by Rabinowitz which, defendant stated, he had checked out.
Using several lists of diamonds defendant had written out, Ariel collected the stones fromvarious suppliers and brought them to defendant at Anaka's office. When the order wascomplete, defendant told Ariel to deliver the diamonds to Rabinowitz in London. On May 6,2001, Ariel took a parcel of diamonds from the safe at Anaka's office, secreted them in hisunderwear and flew to London. He did not declare the diamonds upon arrival. Two days later,Rabinowitz met Ariel at his hotel and took him to an office with the name "Flextrade" on thedoor. There, Ariel gave him a package of memos, which Rabinowitz compared with the stones.On defendant's instructions, Ariel left the diamonds with Rabinowitz. Two days later,Rabinowitz delivered to Ariel, at his hotel, signed copies of the memos, a letter of guaranty andnine postdated checks totaling nearly $6.8 million. Upon his return to New York, Ariel wasinstructed by defendant to deliver the checks to Anaka's attorney, Kenneth Aronson, forexpedited collection. According to Aronson, the checks were ultimately rejected by the bank as"forged or fraudulent."
That same month, Anaka, defendant and Ariel were sued by a number of Anaka's suppliersfor payment or the return of diamonds delivered on memo. At his deposition, defendant falselytestified that he played no role in obtaining from the suppliers the diamonds that had been sold toRabinowitz of Flextrade International and that he had no reason to suspect that the checksreceived from Flextrade were "anything but good."
In late August 2001, Ariel was arrested and charged with grand larceny for using his positionwith Anaka to steal diamonds. Ariel was originally represented by Aronson, whom defendantprovided with the names of persons who might provide bail, including one Maurice Rico,described as a family friend. No bail money was forthcoming, and Ariel remained underdetention at Rikers Island.
In the fall of 2001, defendant asked Vincent Sampieri, a childhood friend and fellowdiamond dealer, to have certain diamonds graded by the Gemological Institute of America(GIA). Over the next few months, Sampieri obtained a number of GIA certificates, which hereturned to defendant, who then paid for them. Sampieri also sold several diamonds obtainedfrom defendant and arranged for approximately a half dozen others to be recut. In March 2002,[*4]Sampieri was arrested by a detective investigating Anaka.Police recovered several diamonds that, upon comparison with GIA reports, were determined tobe stones that had been provided by Anaka's suppliers and subsequently recut.[FN1]
In June 2002, a detective followed defendant as he traveled by subway from his apartment inManhattan to a bank in Woodside Queens. There, defendant deposited $2,000 in cash intoMaurice Rico's bank account. Defendant was arrested on July 1, 2002.[FN2]
Meanwhile, the attorney representing Anaka in the civil litigation was promised a partialpayment by Rabinowitz for the diamonds received by Flextrade. The attorney was told thatRabinowitz had sold the diamonds to Asian dealers, who had not yet paid for them. In June2002, the attorney flew to Israel to meet with Rabinowitz, obtaining his confession of judgmentand some identifying documents, including a driver's license.
After returning to New York, the attorney gave a copy of the license to Ariel's attorney.When it was shown to Ariel, he recognized that the person depicted in the license photographwas merely Maurice Rico disguised behind a thick goatee, dark hair and glasses. An August2001 warrant application indicates that a New York City detective contacted the real MosheRabinowitz, an Israeli diamond merchant, and was informed that the latter had never been toOrlando, Florida, was not in London in early May 2001 and had never heard of Ariel or NormanSchonfeld, Anaka Design or Flextrade International.
Police obtained a warrant and conducted a search of Rico's Florida apartment, where theyrecovered checks of the same type as the checks given to Anaka by Flextrade. On Rico'scomputer they found letters from Rabinowitz to his lawyer and from Rabinowitz to Ariel, as wellas software to print checks for Flextrade, among other entities. In addition, airline recordsdivulged that Rico had made several trips to Tel Aviv, including a two-week stay in March 2002.Finally, account records showed that a $2,000 deposit in Rico's name had been made at a bank inQueens on June 4, 2002 by defendant.[FN3]
Ariel had been in jail for over a year by the time he was shown the license supposedlybelonging to Rabinowitz in late 2002. Shortly thereafter, Ariel began a series of meetings withan Assistant District Attorney, ultimately entering into a cooperation agreement. On January 31,2003, Ariel pleaded guilty to grand larceny in the first degree in satisfaction of the indictmentsagainst him. He turned over two letters received during his pretrial incarceration from defendantthat discussed "the hypothetical return of diamonds in return for a plea deal." The lettersindicated that defendant had refused the Assistant District Attorney's demand to place the [*5]diamonds in escrow before any discussion of a negotiated sentencebecause those "hypothetical diamonds" were his only "hypothetical ace."
Defendant's jury trial lasted nearly eight weeks with over 50 witnesses appearing for thePeople. Included among the items the People introduced into evidence were voluminous invoicesand memos detailing the value of each diamond stolen by defendant. Testifying on his ownbehalf, defendant continued to adhere to his story that he and Anaka had been swindled byFlextrade. On August 10, 2004, following three days of deliberations, the jury convicteddefendant of all 40 submitted counts.
Following his conviction, defendant used the "hypothetical diamonds" and a purportedlyserious medical condition to delay and manipulate the sentencing process. The People submitteda restitution order indicating that the amount defendant owed 11 diamond suppliers whom he haddefrauded was $5,966,389.61. Defendant in a letter to the court dated October 25, 2004 statedthat he wished to return "the considerable amounts of stolen merchandise" in his possession andprovide the District Attorney's office with memos documenting the money owed to Anaka forstones that had been sold. Defendant offered his assistance with any recovery efforts andrequested that sentencing be adjourned from 10 days to two weeks to permit him to deliver thestolen property.
At the adjourned sentencing on October 29, 2004, counsel requested a further two-weekadjournment both to give defendant time to turn over the diamonds in his possession and topermit his client to undergo surgery scheduled for November 18, 2004. The People opposed anyadjournment as a mere delaying tactic, noting that defendant had made a similar offer to returnthe diamonds prior to trial in exchange for a negotiated plea.
The court adjudicated defendant a second felony offender and, after reminding defendantthat he had been warned sentencing would not be further adjourned, denied the motion andproceeded with sentencing. The People noted that defendant had not only stolen nearly $6million but had violated the trust of his victims, who "lost their reputation" and suffered"financially, emotionally, [and] physically." Moreover, defendant made his son, Ariel, "the fallguy," resulting in Ariel's conviction of a felony.
Observing that the evidence of defendant's scheme to steal millions of dollars wasoverwhelming and that there was no question based on his October 25 letter that defendant hadperjured himself at trial in an attempt to deceive the court and jury, the court imposed acumulative sentence of incarceration of from 12½ to 25 years on the charges arising out ofthe theft of the diamonds, to run consecutively with concurrent terms of 3½ to 7 yearsimposed for first-degree perjury and violation of probation, for an aggregate sentence of 16 to 32years. The court further informed the parties that absent a dispute by defendant warranting animmediate hearing as to the amount of restitution, it was prepared to sign the restitution order.However, the court adjourned the execution of sentence so that defendant could have thescheduled surgery.
In December, defendant moved for a further extension of the execution of sentence to lateJanuary 2005 because his surgery had been purportedly postponed to an indeterminate date. Hefurther maintained that he had caused to be delivered to the District Attorney's office some $2million in diamonds in addition to memoranda of accounts receivable in a like amount and,therefore, that the restitution claimed by the District Attorney "must be substantially offset."
The People opposed these requests, noting that restitution had been determined atsentencing. They emphasized that accounts receivable are merely debts, not the goods or cashrequired to satisfy the restitution order.[*6]
On February 8, 2005, defendant moved to reduce hissentence to the minimum of 4½ to 9 years. Defendant argued that the 16-to-32-yearaggregate sentence amounted to a "death sentence" because of his "serious medical problems."Defendant also argued that his 16-to-32 year sentence was much more severe than the 2 to 4years meted out to codefendant Rico. He also pointed to the restitution he had already paid asproof of his rehabilitation.
After hearing argument, the court stated that "[t]he evidence at trial left no question. . . that [defendant] was the prime mover" behind the scheme to defraud thediamond dealers, finding that defendant had received "an appropriate sentence."
On February 22, 2005, prior to executing sentence, the court again heard argument onsentencing. Defendant repeated his request for a reduction in sentence and sought anotheradjournment of execution of sentence, stating that his surgery was now scheduled for March 17,2005. Defendant also pointed to his restitution of some $2 million in diamonds as evidence thatthe victims were "a lot better off" with his help than they would be once he was in prison. Thecourt denied defendant's requests, stating that the restitution order was "based upon the hardevidence in the case," that defendant's sentence was the result of his own actions, and thatdefendant might receive his surgery faster once in the custody of the State Department ofCorrectional Services. Accordingly, the court reimposed the sentence it had previously set.
It is axiomatic that this Court is vested with plenary power to modify a sentence "withoutdeference to the sentencing court" (People v Delgado, 80 NY2d 780, 783 [1992]).However, that power should be exercised only where the sentence is "unduly harsh or severeunder the circumstances" (id.). In determining whether a sentence is appropriate, thefactors to be considered are deterrence, rehabilitation, retribution, and isolation (see People vNotey, 72 AD2d 279, 282 [1980]). In imposing sentence upon a particular defendant, a courtshould consider "the harm caused or contemplated by the defendant, the excuse or provocation,if any, for the defendant's conduct, the restitution which may compensate for the harm done, theprior criminal history of the defendant, the likelihood of recurrence of the defendant's conduct,and whether imprisonment would result in excessive hardship to the defendant" (id. at283, citing Model Penal Code § 7.01 [2]).
The record before us does not support the conclusion that defendant is unlikely to engage infuture fraudulent conduct. He has a long history as a con artist preying on members of thegeneral public. His earlier diamond business was dissolved in 1980 resulting in $4 million inlosses to creditors. As a result, he used an alias to hatch further scams. In 2000, he was convictedof larceny in a scheme involving sale of fictitious mortgages. While he was serving a sentence offive years' probation, including $200,000 in restitution, defendant concocted the instantconvoluted plan to steal millions of dollars of diamonds from dealers. This is his second fraudconviction, committed while still on probation following his first such conviction, and thesecond time his operation of a diamond business has left suppliers with losses in the millions ofdollars.
Defendant is a fraud and recidivist with no qualms about casting blame on others, includinghis own son, to save his own neck. The die was cast when Ariel was used as the front man to setup Anaka. If the scam failed, Ariel would be the fall guy, leaving defendant in the clear. Atdefendant's arraignment, counsel told the court that defendant's son, Ariel, has "a seriouslearning disability. He is dyslexic." Counsel nevertheless told the court: "His son formed Anaka,I think, in June of 2000. My client has no equitable [*7]interest inAnaka and out of the 11 merchants that my colleague refers to on the other indictment involvinghis son Mr. Norman Schonfeld did not engage in any transaction with them to obtain diamonds.There were no negotiations. No meetings. He was not at all involved in any of that. As I say, hedoes not have a proprietary interest in Anaka."
Defendant did nothing to make restitution or otherwise keep his son out of jail, leaving himincarcerated for over a year. Defendant found the fruits of his illegal activities to be moreimportant than the freedom of his own son. As a result of entering a guilty plea, Ariel hasbecome a convicted felon. Defendant has destroyed his son's reputation and ruined hislivelihood, without reservation or apparent regret.
Defendant prolonged his day of reckoning by perjuring himself at civil depositions in 2001and at his criminal trial in 2004. He indirectly admitted to his perjury in his October 25th letter tothe court offering the return of stolen merchandise in an attempt to have his sentence reduced.Defendant's purported remorse and efforts at restitution came only after he was convicted, as partof his last-ditch effort to reduce his sentence and "open the jail door."
In the weeks following defendant's conviction, the scammed merchants sent 13 letters to thecourt requesting that defendant be given the maximum sentence allowed by law. The victimscomplained about the impact of defendant's theft on their lives, family and businesses, and alsoabout the need to deter such conduct in an industry in which trust and handshakes remain vital.Even if defendant did not have a history of fraudulent activity, the extent of the fraud and itsimpact on those who were victimized justify a lengthy period of imprisonment as a means ofdeterring similar conduct by others. As a result of defendant's fraud, the reputation of the victimsand the goodwill of their businesses have been ruined, causing huge losses that may never berecovered. Many of the businesses built their goodwill on a lifetime of laborious work, whichdefendant's mendacity destroyed in a matter of days. A short sentence will not serve to deterfraud and larceny in an industry vulnerable to this type of crime, where diamonds and otherprecious stones are commonly transferred by merchants based on a tradition of trust and honesty.The unduly short sentence advocated by the majority sends the wrong message to otherprospective criminals by permitting defendant to enjoy the fruits of his crime. Significantly,defendant has failed to account for the roughly $4.5 million worth of diamonds that have notbeen returned. Rather than protect the diamond industry and deter similar criminal activity, ashort sentence will encourage prospective criminals to trade a short sentence for a return ofmillions of dollars.
The majority's reference to defendant's age is inapposite. While a defendant's health is arelevant factor in assessing the propriety of sentence, age, standing alone, is not (see e.g.People v Cyr, 119 AD2d 901 [1986], lv denied 68 NY2d 756 [1986]; Peoplev Notey, 72 AD2d 279 [1980], supra). As this Court has stated, "It is patent thatunless incarceration would probably cause defendant's death, he should be made to serve hissentence" (People v Browarnik, 42 AD2d 953 [1973] [heart condition]).
With respect to unsubstantiated protestations of supposedly fragile health, "the merespeculation that due to his advanced age or his prior health problems, the defendant might sufferharm if incarcerated, does not suffice to warrant a modification of the sentence imposed"(People v Chesnard, 175 AD2d 254, 255 [1991]). Defendant has, according to the record,been in need of imminently scheduled surgery for the last six or seven years. As this Court statedin People v Baghai-Kermani (221 AD2d 219, 220 [1995]), "A modification [of sentence]based on a [*8]defendant's deteriorating health must be based onmedical proof which convincingly establishes that incarceration would have an extremelydeleterious impact." Here, defendant's "poor health" argument is based entirely on unsupportedstatements by counsel; defendant has not submitted a single medical record or affidavit from aphysician to support the notion that imprisonment will have an unduly harmful impact on hishealth. Defendant has been in custody since his arrest, and in the seven years that have ensued,there is no indication that he has ever undergone surgery (see Browarnik, 42 AD2d at953 ["despite defendant's condition at the time of conviction he has survived for some threeyears"]; cf. Notey, 72 AD2d at 281-282). Nor is there proof of any medical conditionthat would render the period of incarceration imposed tantamount to a "death sentence," asdefendant has repeatedly claimed (see Baghai-Kermani, 221 AD2d at 221 [1995][incarceration not shown to be life-threatening absent evidence of brain tumor's malignancy]).Defendant's only documented pathology is a pathological disregard for the truth, as evinced byhis multiple perjury convictions. Moreover, should objective medical testing establish thatdefendant is afflicted with a potentially deadly condition, he may apply for medical parole underExecutive Law § 259-r (id.).
Defendant's contention that his offense should be treated leniently because it is a white-collarcrime is unsupported by any reference to case law, reflecting its utter lack of merit. In effect,defendant asks this Court to apply a double standard of punishment in favor of those convictedof financial crimes. He also asks this Court to overlook the fact that he was convicted of aprevious such crime and was on probation from that conviction at the time of his arrest. Finally,the nonviolent nature of the crime is overshadowed by "the immensity of the fraud" and thedevastating impact on defendant's victims, warranting the imposition of a severe sentence as ameans of deterring "others who might be tempted, and as a reflection of communitycondemnation of the conduct of the defendant" (Notey, 72 AD2d at 284 [Medicaidfraud]).
While defendant complains that his coconspirator, Rico, received a disproportionately lowsentence for his part in the fraudulent enterprise, defendant concedes that "he certainly deserveda greater sentence than Rico." Rico, likewise a second felony offender, was convicted of a lessserious offense. He pleaded guilty to the top count in the indictment against him, forgery in thesecond degree, a class D felony (Penal Law § 170.10), while defendant was convicted of,inter alia, grand larceny in the first degree, a class B felony (Penal Law § 155.42). Inaddition, Rico's role in the scheme was relatively minor, being limited to the forging of checksand, at defendant's instance, making trips to Israel to impersonate Moshe Rabinowitz.
Defendant, on the other hand, with his extensive experience in the diamond business, wasthe mastermind and motive force that guided the entire scheme to defraud Anaka's suppliers. Notonly is defendant a second felony offender due to his conviction of third degree grand larceny inconnection with the sale of fictitious mortgages, he previously operated a diamond brokeragebusiness that caused some $4 million in losses to its creditors, with the result that defendant, byhis own admission, "was a controversial figure in the diamond industry." It was defendant whoformed Anaka, using his son to obtain diamonds on consignment and to spirit over $5 million instones to London, where they simply disappeared. In view of defendant's pivotal role in thecrime, it cannot be said that the sentence imposed by Supreme Court is "unduly harsh or severe"(Delgado, 80 NY2d at 783; cf.People v Pedraza, 25 AD3d 394, 398 [2006, Tom, J., dissenting], lv denied 7NY3d 760 [2006] [reduced sentence of 23 years to life imposed despite "a lack of credibleevidence to personally connect defendant to the acts comprising arson and attempted [*9]murder and the victim sustained no significant physical harm"]).
Review of the record thus indicates that, under all the circumstances, the sentence imposedby Justice Carruthers was warranted (see People v Barzge, 244 AD2d 213, 214 [1997],lv denied 91 NY2d 889 [1998]). The present scheme to defraud resulted in some 40counts being submitted to the jury, on all of which defendant was found guilty, including grandlarceny in the first, second and third degrees, forgery, criminal possession of stolen property andperjury. The fraud was committed against separate individuals and entities. Indeed, the sentenceimposed was "relatively lenient" (id.) inasmuch as Justice Carruthers was not obligatedto have the bulk of the prison terms run concurrently, as he did, instead of consecutively (PenalLaw § 70.25 [1]).
Defendant has shown no remorse for the fraud he committed or the injury to his victimsincluding his own son. When the fraudulent scheme began to unravel in 2001, defendant left hisson holding the bag. He then perjured himself at trial in an attempt to avoid conviction. It wasonly after being convicted that he offered to return a portion of the stolen merchandise in anattempt to barter a shorter sentence but still has not accounted for an additional $4.5 million instolen diamonds. After sentencing, defendant continued to deceive the court to delay executionof the sentence advancing unsubstantiated medical ailments to bargain for a lesser sentence.
Even with the foregoing background, the majority sees fit to reduce defendant's aggregatedprison term of 16 to 32 years to 8½ to 17 years, making defendant soon eligible for parole.
At defendant's arraignment, the Assistant District Attorney told the court that defendant "iswell known in the diamond community as a con artist. In fact, that is, not only in the diamondcommunity, but in the community at large. He is a con artist. That is what he does for a living.And I assume that he will attempt to con the Court." The record demonstrates that these wordswere prescient. The proceedings in this matter establish that defendant has engaged inconfidence schemes, successfully duping victims both within and outside the diamondcommunity. The majority's disposition of this appeal demonstrates that defendant has been noless successful in his attempt to deceive this Court.
Footnote 1: On December 6, 2002, Sampieripleaded guilty to criminal possession of stolen property in the third degree and was sentenced tosix months' incarceration and five years' probation.
Footnote 2: At the time of his arrest,defendant was still on probation from his prior conviction of third degree grand larceny inconnection with the fraudulent scheme involving fictitious mortgages.
Footnote 3: On March 16, 2004, Ricopleaded guilty to forgery in the second degree (11 counts) and scheme to defraud (two counts)and was sentenced to 2 to 4 years' incarceration.