
    [739 NE2d 727, 716 NYS2d 361]
    The People of the State of New York, Respondent, v Roger C. Sala, Appellant. The People of the State of New York, Respondent, v John W. Donovan, Appellant. The People of the State of New York, Respondent, v Roger V. Sala, Appellant.
    Argued September 12, 2000;
    decided October 17, 2000
    
      POINTS OF COUNSEL
    
      Jeffrey S. Berkun, Albany, for appellant in the first above-entitled action.
    The trial court’s order setting aside the jury’s verdict against Roger C. Sala, based upon the lack of requisite intent as a matter of law, was proper in all respects and should be affirmed. (Matter of Holtzman v Bonomo, 93 AD2d 574; People v Thompson, 158 Misc 2d 397; People v Singh, 191 AD2d 731; People v Davis, 208 AD2d 1062; People v Vasquez, 142 AD2d 698; People v Kaminsky, 127 Misc 2d 497; Pereira v United States, 347 US 1; People v Mikuszewski, 73 NY2d 407; Owens v United States, 221 F2d 351; People v Ford, 88 AD2d 859.)
    
      
      Eliot Spitzer, Attorney General, New York City (Robin A. Forshaw, Preeta D. Bansal, Debra L. W. Cohn and Janet Cohn of counsel), for respondent in the first above-entitled action.
    The trial evidence was legally sufficient to establish that defendant knowingly participated in the fraudulent investment scheme and that he shared his accomplices’ intent to defraud investors. (People v Reynolds, 174 Misc 2d 812; Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574; People v First Meridian Planning Corp., 86 NY2d 608; People v Gray, 86 NY2d 10; People v Noble, 86 NY2d 814; People v Cabey, 85 NY2d 417; People v Rossey, 89 NY2d 970; People v Ryan, 41 NY2d 634; People v Norman, 85 NY2d 609; United States v Andrade, 788 F2d 521, cert denied sub nom. Riley v United States, 479 US 963.)
    
      Daniel G. Moriarty, Albany, for appellant in the second above-entitled action.
    I. The People have failed to prove that John Donovan intended to steal from, or cheat and defraud, anyone, and in the absence of proof of such a culpable mental state none of the convictions entered against him may be sustained. (People v Powell, 22 AD2d 959; People v Block & Kleaver, 103 Misc 2d 758; People v Baker, 96 NY 340; People v Sloane, 165 Misc 444, 254 App Div 780, 279 NY 724; People v Norman, 85 NY2d 609; People v Yonkers Contr. Co., 17 NY2d 322; Durland v United States, 161 US 306; United States v Hanlon, 548 F2d 1096; United States v Shareef, 714 F2d 232; People v White, 101 AD2d 1037.) II. General Business Law § 352-c (6) defines an offense of mental culpability and not one of strict liability. Both the Court below and the Trial Judge misinterpreted this provision in evaluating the sufficiency of the evidence and therefore reached an incorrect conclusion. (People v Federated Radio Corp., 244 NY 33; Morissette v United States, 342 US 246; People v Florentino, 116 Misc 2d 692; Liparota v United States, 471 US 419; Staples v United States, 511 US 600.)
    
      Eliot Spitzer, Attorney General, New York City (Robin A. Forshaw, Preeta D. Bansal, Debra L. W. Cohn and Janet Cohn of counsel), for respondent in the second above-entitled action.
    The trial evidence, viewed in the light most favorable to the People, was legally sufficient to establish that defendant shared his accomplices’ intent to steal from and defraud First Meridian investors. (People v Bleakley, 69 NY2d 490; Jackson v Virginia, 443 US 307; People v Cabey, 85 NY2d 417; People v Contes, 60 NY2d 620; People v Ford, 66 NY2d 428; People v 
      
      Williams, 84 NY2d 925; People v Rossey, 89 NY2d 970; People v Ryan, 41 NY2d 634; People v Norman, 85 NY2d 609; People v Reynolds, 174 Misc 2d 812.)
    
      Ackerman, Wachs & Finton, P. C., Albany (Theresa M. Suozzi of counsel), and Eugene P. Devine, Public Defender of Albany County for appellant in the third above-entitled action.
    I. A mere omission of fact cannot serve as the sole basis for a conviction of grand larceny by false pretenses. (People v Serra, 104 AD2d 66; Matter of Holtzman v Bonomo, 93 AD2d 574; People v Thompson, 158 Misc 2d 397; People v Singh, 191 AD2d 731; People v Davis, 208 AD2d 1062; People v Vasquez, 142 AD2d 698; People v Churchill, 47 NY2d 151; People v Heisler, 92 AD2d 940; People v Soto, 76 Misc 2d 491; People v Chaitin, 94 AD2d 705, 61 NY2d 683.) II. The trial court erred in failing to set aside the jury’s verdict regarding the conviction entered against appellant for scheme to defraud. (People v Bleakley, 69 NY2d 490; People v Blake, 5 NY2d 118; People v Harris, 306 NY 345; People v Contes, 60 NY2d 620; People v Way, 59 NY2d 361; People v Benzinger, 36 NY2d 29; People v Cleague, 22 NY2d 363; People v Kaminsky, 127 Misc 2d 497; Pereira v United States, 347 US 1; People v Mikuszewski, 73 NY2d 407.) III. The trial court should have set aside the jury’s verdict regarding the convictions entered against appellant pursuant to the Martin Act due to the insufficiency of the evidence. (People v Landes, 192 AD2d 1; People v Hooker, 4 Misc 2d 558; People v Federated Radio Corp., 244 NY 33; Bishop v Commodity Exch., 564 F Supp 1557; People v Royal Sec. Corp., 5 Misc 2d 907; State of New York v Sonifer Realty Corp., 212 AD2d 366; Ross v Bolton, 639 F Supp 323; People v Florentino, 116 Misc 2d 692.)
    
      Eliot Spitzer, Attorney General, New York City (Robin A. Forshaw, Preeta D. Bansal and Robert A. Forte of counsel), for respondent in the third above-entitled action.
    I. The trial evidence, viewed in the light most favorable to the People, fully supported defendant’s guilt of all 16 counts of false pretenses grand larceny, and defendant’s claim that an omission cannot serve as the basis for a false pretenses grand larceny conviction is not properly before this Court. (People v Bleakley, 69 NY2d 490; Jackson v Virginia, 443 US 307; People v Cabey, 85 NY2d 417; People v Contes, 60 NY2d 620; People v Ford, 66 NY2d 428; People v Williams, 84 NY2d 925; People v Rossey, 89 NY2d 970; People v Ryan, 41 NY2d 634; People v Norman, 85 NY2d 609; People v Drake, 61 NY2d 359.) II. The trial evidence supports defendant’s conviction of scheme to defraud. (People v Reynolds, 174 Misc 2d 812; People v First Meridian Planning Corp., 86 NY2d 608; United States v Andrade, 783 F2d 521, cert denied sub nom. Riley v United States, 479 US 963; People v White, 101 AD2d 1037; United States v Price, 623 F2d 587, 449 US 1016; United States v Pearlstein, 576 F2d 531; United States v O’Malley, 707 F2d 1240; Lustiger v United States, 386 F2d 132, 390 US 951; People v Gray, 86 NY2d 10; Griffin v United States, 502 US 46.) III. The trial evidence is legally sufficient to support defendant’s conviction of 16 counts of fraud in the sale of securities. (People v Dekle, 56 NY2d 835; People v Federated Radio Corp., 244 NY 33; People v Ribowsky, 77 NY2d 284; Gary Plastic Packaging Corp. v Merrill Lynch, Pierce, Fenner & Smith, 756 F2d 230; Krome v Merrill Lynch & Co., 637 F Supp 910; United States v O’Malley, 707 F2d 1240; State of New York v Rachmani Corp., 71 NY2d 718; People v Norman, 85 NY2d 620.)
    
      Joshua L. Dratel, P. C., New York City (Joshua L. Dratel of counsel), and Newman Schwartz & Greenberg (Richard A. Greenberg of counsel) for New York State Association of Criminal Defense Lawyers, amicus curiae, in the three above-entitled actions.
    Under long-settled New York law, larceny by false pretenses requires a material misrepresentation, and cannot be based on omissions alone, and any change should be made by the Legislature, not the Judiciary. (People v Drake, 61 NY2d 359; People v Norman, 85 NY2d 609; People v Churchill, 47 NY2d 151; People v Baker, 96 NY 340; Ranney v People, 22 NY 413; People v Johnson, 87 Misc 89; People v Pannone, 31 NY2d 721; People v Nunez, 157 Misc 2d 793; People v Reynolds, 174 Misc 2d 812; People v McDonald, 88 NY2d 281.)
   OPINION OF THE COURT

Rosenblatt, J.

As former principals of First Meridian Planning Corporation, defendants were convicted of various crimes arising out of a scheme to defraud investors. All defendants challenge the legal sufficiency of the evidence as to fraudulent intent — a necessary element in all of the crimes charged. Because this contention lacks merit, we affirm the order of the Appellate Division. Another aspect of this appeal requires us to consider our power to address an issue raised by two of the defendants: whether a conviction for grand larceny by false pretenses (Penal Law § 155.05 [2] [a]) may be based merely upon the concealment or omission of material facts. For reasons that follow, we are unable to reach this question.

Defendants Roger V. Sala, John Donovan and Roger C. Sala were each indicted on one count of scheme to defraud in the first degree (Penal Law § 190.65 [1]). Roger V. and Donovan were also indicted on 16 counts of grand larceny (Penal Law §§ 155.30, 155.35) and 16 counts of securities fraud (General Business Law § 352-c [6]). Defendants were tried jointly.

While the indictment did not specify the theory on which the grand larceny counts rested, the People, in their bill of particulars and at trial, proceeded on the basis of a larceny by false pretenses. At the close of the People’s case, Roger C. moved for a trial order of dismissal based on insufficiency of the evidence, upon which the court reserved decision. Defendants Roger V. and Donovan made similar motions. They identified specific alleged insufficiencies but did not assert — as they do now — that false pretenses larceny must rest on affirmative false statements and that omissions or concealments alone are insufficient. Supreme Court denied their motions and the case proceeded against all three as charged.

Instructing the jury as to the “false statement” element of false pretenses larceny, the trial court stated that

“[a] misstatement or representation is false, obviously, when it is untrue. Whether a statement or representation is false depends upon the facts as they existed at the time the statement or representation was made and not the facts as they may appear now with the benefit of hindsight.”

The court, however, went on to state that “[a] representation or statement may be false when it constitutes a half truth or effectively conceals or omits a material fact.” Sala and Donovan did not object to this formulation. The jury found all three defendants guilty on all counts. Prior to sentencing, the trial court dismissed the case against Roger C. The court then granted “reargument” on Roger V. and Donovan’s dismissal motions and, on its own initiative, dismissed 10 of the 16 larceny counts against each of them. It ruled that larceny by false pretenses requires affirmative, overt misrepresentations, and that the proof revealed only defendants’ “omissions with .respect to disclosure of fees and commissions and other matters.”

The People appealed; Roger V. and Donovan cross-appealed. The Appellate Division modified by reversing so much of Supreme Court’s order as granted the motions by all defendants for trial orders of dismissal, and affirmed the judgments of conviction against Roger V. and Donovan. A Judge of this Court granted defendants leave to appeal. We now affirm.

At trial, the prosecution presented proof that defendants disguised First Meridian as an objective financial planning institution that employed expert advisers who developed individualized investment strategies for its investors. There was evidence that, in reality, defendants used First Meridian to channel investors’ assets into the same three risky investment vehicles, while misrepresenting the risks involved and concealing the fact that the company earned substantial commissions on the investments. Indeed, the proof revealed that 85% of First Meridian’s annual revenue was derived from these undisclosed commissions. Investors had no idea of this; defendants went to some length to keep them in the dark. We agree with the Appellate Division that the evidence at trial was legally sufficient to demonstrate defendants’ fraudulent intent in relation to all counts.

In addition, Roger V. and Donovan argue that the evidence was insufficient to support their convictions on the larceny counts dismissed by the trial court, because an omission of material fact does not constitute a “false statement” for purposes of larceny by false pretenses. That argument, however, is not properly before this Court. The trial court instructed the jury that the definition of a “false statement” included both affirmative misrepresentations and any representation that “effectively conceals or omits a material fact.” Defendants did not object to this construction. Given the jury’s guilty verdict, our review is limited to whether there was legally sufficient evidence as to false statements based on the court’s charge as given without exception (see, People v Dekle, 56 NY2d 835, 836; see also, People v Gray, 86 NY2d 10, 24). There was; and we must therefore affirm. While the Appellate Division went further and addressed the question whether a false pretenses larceny conviction could ever rest merely on material omissions or concealments, our affirmance does not reach this issue and we express no opinion on the point. The evidence was legally sufficient under the unchallenged charge and provided a proper basis for the jury’s verdict (People v Williams, 84 NY2d 925, 926; People v Contes, 60 NY2d 620, 621).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley concur.

In each case: Order affirmed. 
      
      . Before trial, the motion court dismissed the scheme to defraud count as duplicitous. Upon the People’s appeal, the Appellate Division reinstated it (see, 201 AD2d 145). We affirmed, holding that the count was not invalid for duplicity, and that the evidence before the Grand Jury supported the existence of a unitary scheme to defraud (see, 86 NY2d 608). That appeal also dealt with dismissals of various counts that are not before us.
     
      
      . In earlier parlance, an unobjected-to jury charge was called the “law of the case” (see, People v Evans, 94 NY2d 499, 503 [citing Brown v Du Frey, 1 NY2d 190, 195; People v Lobel, 298 NY 243, 254]).
     