People v Rafikian (also known as Mo Kian)
Attorneys and Parties
Brief Summary
Criminal law—grand larceny, scheme to defraud, criminal impersonation, and unauthorized practice of law
After a consolidated jury trial in Supreme Court, Queens County, the defendant was convicted on multiple counts of grand larceny, scheme to defraud, criminal impersonation, and practicing or appearing as an attorney without being admitted and registered, and sentences were imposed.
The Appellate Division reversed all judgments, vacated all convictions and sentences on all counts under three indictments, dismissed the indictments, and remitted for Criminal Procedure Law (CPL) 160.50 proceedings [sealing of records upon termination of a criminal action in favor of the accused].
1) Grand larceny convictions were against the weight of the evidence as charged, because the People failed to prove larceny by trespassory taking without consent under Penal Law (PL) § 155.05(2)(a) [definition of larceny including trespassory taking without consent]; the funds were voluntarily given. 2) Criminal impersonation in the second degree was legally insufficient because PL § 190.25(1) [impersonates another and acts in the assumed character with intent to obtain a benefit or to injure or defraud] requires impersonation of a real person, which the People failed to prove. 3) The scheme to defraud and unauthorized-practice counts were duplicitous because multiple acts were proven for each count and neither the verdict sheet nor charge tied specific acts or complainants to specific counts, making it impossible to know the act underlying each verdict.
Background
Three indictments charged Rafikian for conduct between February 2000 and February 2005 with grand larceny (first and second degree), scheme to defraud in the first degree, criminal impersonation in the second degree, and practicing or appearing as an attorney without being admitted and registered. The indictments were consolidated for trial. A jury found him guilty on all charged categories, and the court imposed sentences on November 3, 2014. On appeal, he challenged, among other things, the weight and sufficiency of the evidence for larceny and impersonation, and the duplicity of scheme-to-defraud and unauthorized-practice counts.
Lower Court Decision
The Supreme Court, Queens County (Justice Daniel Lewis), entered three judgments on a jury verdict convicting the defendant of grand larceny in the first degree; multiple counts of grand larceny in the second degree; three counts of scheme to defraud in the first degree; six counts of criminal impersonation in the second degree; and three counts of practicing or appearing as an attorney without being admitted and registered, and imposed sentences.
Appellate Division Reversal
Reversed on the law and the facts. The court held that, as charged to the jury, the People were required to prove larceny by trespassory taking without consent (PL § 155.05(2)(a) [definition of larceny including trespassory taking without consent]) and failed to do so because complainants voluntarily gave funds; this applied to all grand larceny counts. The convictions for criminal impersonation in the second degree were legally insufficient because the People did not show the defendant impersonated a real person as required by PL § 190.25(1) [impersonates another and acts in the assumed character with intent to obtain a benefit or to injure or defraud]. The scheme to defraud and unauthorized-practice counts were duplicitous since multiple acts underlay each count and neither the verdict sheet nor jury charge linked counts to specific complainants or acts, rendering the bases for the verdicts indeterminate. The court vacated all convictions and sentences, dismissed all counts and indictments, and remitted for CPL 160.50 proceedings [sealing of records upon termination of a criminal action in favor of the accused].
Legal Significance
Clarifies that on weight-of-the-evidence review, an appellate court evaluates proof against the elements as charged to the jury without objection; if the People elect or the court charges a narrow larceny theory (trespassory taking without consent), voluntary transfers defeat that theory. Reinforces that criminal impersonation in the second degree requires proof of impersonation of an actual, real person. Reaffirms New York’s rule against duplicitous counts where multiple criminal acts are aggregated without clear linkage to specific counts, especially when verdict sheets and charges fail to cabin juror consideration to discrete acts.
When the jury is charged solely on trespassory taking, voluntary payments preclude grand larceny; criminal impersonation demands a real-person impersonation; and counts aggregating multiple acts without clear act-by-count specificity are duplicitous, warranting reversal and dismissal.