The People of the State of New York, Respondent, v. Sam Faden, Appellant

The People of the State of New York, Respondent, v. Sam Faden, Appellant. (Appeal No. 1. Information Docket No. 13336.) [MAJORITY] Defendant was convicted on two counts. The first count in the information charged him with violation of section 340 of the Banking Law (engaging in the business of lending money without a license). The second count charged him with violation of section 357 of the Banking Law (usury). Judgment affirmed. No opinion. Present — Martin, P. J., McAvoy, O’Malley, Townley and Glennon, JJ.; Townley and Glennon, JJ., dissent from the affirmance of the conviction on the second count in the information on the ground that the charge therein contained was necessarily embraced in the first count, wherein the defendant was accused of violating section 340 of the Banking Law. The charge in the first count covered a period from “on or about the 1st day of November, 1933, to on or about the 28th day of October, 1935,” and was, in substance, that defendant, without a license, engaged in the business of making loans of money in the amount of $300 or less upon usurious rates of interest. Since a necessary and basic element of the crime, which constitutes a violation of section 340, is usury, specific instances of illegal transactions which would tend to establish the act of doing business in a prohibited manner during the same period should not have been made the basis of further charges.