Bogus real estate investments promoted by a Bronx man accused of bilking investors out of millions of dollars qualify as “securities,” paving the way for prosecution under the state’s Martin Act, a judge has ruled.
While the allegedly fraudulent investments may not have been touted as classic securities by Robert Van Zandt Sr., courts have construed the term liberally when interpreting the anti-fraud act, Bronx Supreme Court Justice Martin Marcus (See Profie) noted.
Marcus wrote in People v. Van Zandt, 1540/2012, that the relevant finding by the grand jury was that Van Zandt’s conduct when he was “engaged in inducing and promoting the issuance, distribution, exchange, sale negotiation [or] purchase of securities” was fraudulent under the Martin Act, General Business Law §352-c(5) and (6).
“In this case, the requisite intent to defraud could easily be inferred from the evidence before the grand jury of the defendant’s conduct and of the use to which the investor’s money was put,” Marcus wrote, citing People v. Calbud, 49 NY2d 389 (1980). “The evidence that he obtained money from the investors by making misrepresentations was substantial.”
Marcus upheld the grand jury’s indictment of Van Zandt for two Martin Act counts of Fraudulent Practices in Respect to Stocks, Bonds and other Securities.
In the 2013 indictment, Van Zandt was also charged with 21 counts of second-degree grand larceny, eight counts of third-degree grand larceny, two counts of first-degree money laundering and two counts of first degree scheming to defraud. He faces 25 years to life on the top counts.
Marcus upheld all but the money laundering counts.
Attorney General Eric Schneiderman maintains that Van Zandt, dubbed the “Bernie Madoff of the Bronx” by New York City tabloid newspapers, induced 250 people to invest more than $35 million in several vehicles that turned out to be a Ponzi scheme.
The indictment concerned complaints by 29 former investors who said they were defrauded of nearly $5 million.
The attorney general said Van Zandt targeted clients in his tax preparation business. He used their investments—between $25,000 and $900,000—on golf trips, New York Yankees tickets, cars and other personal purchases, according to authorities.
In one investment, “R.S. Enterprises of New York, Inc.,” Van Zandt promised to pay clients dividends and then return their principal after a joint commercial and residential building project was completed on Blondell Avenue in the Bronx.
In return, investors received certificates titled “Class B Shares of RS Enterprises of New York, Inc.”
Although the certificates and the subscription agreements with investors did not use the word “stock,” Marcus wrote that “it is evident from their characterization” that the certificates “conveyed to the investors that they are stock in a corporation.”
The project was never built.
In another variation, authorities said Van Zandt investors received an instrument characterized as an “agreement” between “Rockwell Consulting of N.Y. and IRA Services Trust Company” which promised that the investments “will be placed into U.S. Government Securities, High Grade Corporate Bonds and possibly other entities.”
The investments were never made, according to the indictment.
Van Zandt argued that the purported investments and notes did not fall within the definition of “securities” under the Martin Act.
But the judge said courts have long followed the lead of Matter of Waldstein, 160 Misc. 763 (Sup. Ct. N.Y. Co 1939), which held that “any form of instrument used for the purpose of financing and promoting enterprises, and which is designed for investment, is a security according to the modern meaning of that term.”
Marcus noted that the Court of Appeals has held that the Martin Act “should be liberally construed to give effect to its remedial purpose of protecting the public from fraudulent exploitation in the officer and sale of securities,” citing All Seasons Resorts v. Abrams, 68 NY2d 81 (1986).
Marcus said the court added that similar federal court rulings pertaining to federal securities law, such as Reves v. Ernst & Young, 494 U.S. 56 (1990), may also serve to broaden applications of the state’s Martin Act.
Michael Bachner, Scott Splittgerber and Howard Weinter of Bachner & Associates in Manhattan argued for Van Zandt.
Bachner said Van Zandt and his lawyers “respectfully disagree” with Marcus’ reasoning. “We believe that the notes at issue were not securities under prevailing law,” Bachner said in an interview Monday.
Bachner said that given the continuing discovery requests, he does not expect a trial to begin for about a year. Van Zandt, who will argue that he did not defraud investors, is free on bail awaiting the trial, Bachner said.
“It is our view that Mr. Van Zandt was manipulated by those around him, including, unfortunately, his son, who is now deceased, and that Mr. Van Zandt always acted in the best interests of his clients,” Bachner said.
Robert Van Zandt Jr. was found in the swimming pool of his Yonkers home in 2012 with a bullet wound in his head in what was determined to be a suicide.
Assistant Attorney General Joseph D’Arrigo is prosecuting the case.
The Martin Act was established in 1921 to protect investors from securities fraud. The statute had fallen somewhat into disuse until it was revived during Eliot Spitzer’s tenure as attorney general from 1998-2006, when he employed it investigations of Wall Street investment abuses.