Whether proof of omissions or concealments alone, without affirmative false statements, is sufficient evidence to demonstrate fraudulent intent.

Yes. Evidence of an investment scheme which concealed from investors the risks involved and commissions earned is sufficient to demonstrate fraudulent intent.

The State charged Defendants with several counts of grand larceny and several counts of securities fraud for their activities as financial investment advisors. The evidence at trial showed that Defendants misrepresented to potential investors that they offered low risk investment vehicles as well as individually tailored investment advice for each investor when, in reality, these investors' assets were channeled into risky investments, and Defendants earned a significant commission. The State argued at trial that Defendants committed grand larceny by false pretenses. The trial court denied Defendants' motions to dismiss the case based on insufficiency of the evidence, and instructed the jury that larceny by false pretenses is committed when statements are made that effectively conceal or omit material facts. Defendants did not contest this jury instruction, and the jury found Defendants guilty on all counts. The court then dismissed the case against one Defendant and granted reargument on the other two Defendants' dismissal motions. Reversing its position taken in the original jury instruction, the trial court held that larceny by false pretenses requires affirmative, overt misrepresentations, not merely the concealment or omission of material facts. The trial court thus dismissed several of the larceny counts against the two remaining defendants. The Appellate Division modified this holding by reinstating and affirmed the jury verdicts on all counts.

On appeal, Defendants' argument was twofold. First, they argued that the evidence was insufficient to find the fraudulent intent necessary to sustain their convictions. Second, they argued that the evidence was also insufficient because an omission of material fact does not constitute a "false statement" for purposes of larceny by false pretenses.

The Court affirmed the Appellate Division holding on all counts. Addressing the first issue, the Court reviewed the evidence presented at trial and affirmed the Appellate Court's holding that the evidence was legally sufficient to find the necessary fraudulent intent. Turning to the second issue, the Court noted that because of the posture of the appeal, its review was limited to the evidence as originally presented to the jury at trial. Furthermore, Defendants failed to object to the trial court's original jury instruction. The Court held that the evidence was legally sufficient given the trial court's uncontested original jury instruction defining a false statement as a concealment or omission of material fact. The Court therefore did not reach the issue of whether a conviction for grand larceny for false pretenses may be based merely on the concealment or omission of material facts.