Fraud or Faith? Prosecuting Fortune Telling Schemes Under New York’s Grand Larceny Statute
When do spiritual practices cross the line into criminal fraud? In New York City, fortune tellers have often crossed this line, swindling thousands of dollars from innocent New Yorkers and tourists. Ann Thompson, more commonly known as “Psychic Zoe,” is one such example of this unfortunate phenomenon. Thompson defrauded one woman of $740,000 in the name of spiritual salvation. [1] A woman looking for an alternative source of guidance walked into Psychic Zoe’s parlor for a five dollar psychic reading. Thompson told the woman that there are evil curses placed on her family, which needed to be “worked” on spiritually, and this “work” required the repeated purchase of gold. As the scam continued, the amount of gold “needed” rose, and Thompson told the victim to wire her various sums in the thousands and hundreds of thousands. Such theft would typically be prosecuted under New York’s grand larceny statute, which articulates the crime as intending to deprive another person of his property “by trick, embezzlement, or obtaining property by false pretenses,” or by false promise. [2] Yet, in recent years it has been extremely difficult to hold these fraudsters accountable for two reasons. First, since fortune tellers often claim to root their practices in spiritual or even tangentially religious beliefs, they are protected under the First Amendment. [3] Second, New York prosecutors must satisfy the intent requirement under grand larceny. Prosecuting fraudulent fortune telling schemes under New York’s grand larceny statute is virtually impossible, as it has become increasingly more difficult for prosecutors to prove criminal intent to defraud via a purported spiritual practice.
According to New York Penal Law § 155.05, larceny is defined as depriving another person of property. [4] The deprivation of property can occur in multiple ways. First, there is the concept of “common law larceny” which includes trespassory taking, trick, embezzlement, or obtaining property by false pretenses. [5] Common law larceny by trick and through false pretenses are especially relevant for the fortune telling case study. Second, one can commit larceny by acquiring lost property. [6] Third, larceny can be committed as a result of issuing a bad check. [7] Possibly the most relevant to fraudulent fortune telling is obtaining property by false promise. [8] However, proving that an individual has committed larceny by false promise requires that “evidence establishing that the facts and circumstances of the case are wholly consistent with guilty intent or belief and wholly inconsistent with innocent intent or belief.” [9] This definition poses undue challenges for prosecution as it requires proving deceitful intention behind the deprivation of property. Other methods of committing larceny include extortion, wage theft, and deed theft. [10] What promotes a larceny offense to the status of grand in various degrees is the value of the deprived property. According to New York Penal Law § 155.30, the monetary threshold for grand larceny in the fourth degree is stealing property exceeding $1,000. [11] For grand larceny in the third degree, New York Penal Law § 155.35 dictates one must steal property exceeding $3,000. [12] Grand larceny in the second degree is a considerable jump, with the minimum threshold being $50,000 as outlined in New York Penal Law § 155.40. [13] Finally, as stated in New York Penal Law § 155.42, grand larceny in the first degree is stealing property exceeding one million dollars. [14] Typically, the majority of fortune telling frauds in New York fall under grand larceny in the second degree, given the high dollar amount stolen from victims. Intent remains the primary hurdle for prosecution, regardless of the degree. In addition to larceny, fortune telling itself is a class B misdemeanor offense under New York Penal Law § 165.35. [15] However, fortune telling is rarely ever prosecuted as an offense on its own.
Proving intent in these cases is extremely difficult, as fortune telling has been labeled a spiritual practice and is therefore protected under the First Amendment. In 2010, the ACLU of Tennessee filed a federal case, Candice Wohlfeil v. The City of East Ridge, on behalf of Candice Wohlfeil, a spiritual counselor and East Ridge flea market vendor, who was performing tarot card readings––a common fortune telling practice––and thereby violating an East Ridge city law which prohibits anyone from fortune telling. The ACLU attorney argued that “the First Amendment precludes the government from declaring which ideas are acceptable or not” and that Wohlfeil “has the right to make predictions, whether for fun or profit, without the government discriminating against the content of her speech.” [16] The Establishment Clause of the First Amendment is the most relevant to protecting fortune telling, stating “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” [17] While fortune telling may not be an explicitly religious practice, it is undoubtedly purported to be a spiritual one. For instance, many fortune tellers fraudulently claim that their practices are backed by churches to establish credibility and trust with their victims. In the Psychic Zoe case, Thompson appealed to an abstract “church in New Jersey” which was supposedly supporting her spiritual “work” on curse removal. [18] By using the appeal of trusted religious communities, fraudulent fortune tellers can continue to advance their spiritual or even religious claims. In sum, fortune telling frauds not only present challenges from a grand larceny perspective, but also inherent to this challenge is the potential infringement of First Amendment rights.
Prosecuting fortune tellers was met with more success in the past, but it is now a struggle as attitudes toward fortune tellers and the scope of larceny statutes have changed. Historically, fortune tellers have been prosecuted for the simple offense of being fortune tellers. Notably, in People of the State of New York v. Mae Rosenberg (1957), Rosenberg performed a card reading to a policewoman in a Brooklyn tearoom. Rosenberg contended that the fortune telling statute was worded in an ambiguous manner, but Judge Wallach held “the mere doing of the act, under the circumstances, whether well-intentioned or not, if done, is sufficient for a finding by the court that the statute has been violated.” [19] In the Rosenberg case, fortune telling was enough to lead to a criminal conviction. Thirty years later, in People of the State of New York v. Abraham Ballard (1988), Ballard appealed a guilty verdict in a fortune telling fraud case. The appellate court affirmed the jury verdict, holding that “the defendant never intended to, and indeed, recognized that he could not possibly fulfill the promises he made to his victims.” [20] It is with the Ballard case that intent in such cases is established as a primary factor in determining guilt of fortune tellers. No longer was the mere act of fortune telling enough to be prosecuted. However, a change in the tide occurs with People of the State of New York v. Victor Sanchez (1994). The appellate court pushed back on many of the grand larceny charges. [21] While the Sanchez case deals primarily with the bill of particulars, an itemized list of claims, the attitude and tone toward fortune telling grand larceny cases noticeably shifts in a more skeptical direction.
Public opinion has evolved along with the changing courts. In the late 19th and early 20th centuries, fortune tellers were nearly the top public enemy. [22] Now, more of the blame seems to be placed on victims of fortune telling scams instead of on the fortune tellers themselves. Press coverage of these scams has increased in recent years, with the few convictions of fortune tellers receiving widespread coverage in major publications like The New York Times, The Atlantic, and The New Yorker. Many people view fortune tellers with a great degree of skepticism, and they also view victims of their fraud as naive or gullible. In 2013, Sylvia Mitchell, a fortune teller at Greenwich Village parlor “Zena Clairvoyant,” was found guilty on 10 counts of grand larceny and one count of scheme to defraud after swindling $138,000 from two women. [23] A similarly viral case of Priscilla Kelly Delmaro resulted in a guilty verdict on grand larceny counts, with Delmaro stealing more than $550,000 from the complaining victim. [24] However, such prominent cases are few and far between; prosecutors view them as undesirable, the public and news outlets contribute to making a spectacle of the proceedings, and courts often reduce them to lower-level offenses by sentencing the defendants to probation.
Fortune telling fraud cases are a niche among the typical white-collar crime cases that state prosecutors encounter. Nevertheless, these cases pose important questions for prosecution. Namely, how does one prove intent in order to prosecute fraudsters under grand larceny statutes in New York, and how do such cases avoid infringing on the First Amendment right to freedom of religion? The unfortunate answer is that these requirements are very difficult to meet, and this results in many cases of fortune telling fraud going unpunished. It is virtually impossible to prove that a fortune teller, who insists that her actions are spiritual or possibly religious in nature, does not actually believe in her practices. Unless reforms are made, the majority of fraudulent fortune tellers in New York will continue to defraud the public. It is the hope that previous media attention on psychics who faced guilty verdicts and jail time serve as a cautionary tale for both fortune tellers and potential victims.
Edited by Audrey Carbonell
[1] Sylvia Varnham O’Regan, “When a Psychic Reading Costs You $740,000,” GQ, 2020, https://www.gq.com/story/the-curse-of-psychic-zoe; Arwa Mahdawi, “She didn't see it coming: psychic arrested for $800,000 fraud,” Guardian, 2018, https://www.theguardian.com/us-news/2018/may/12/new-york-psychic-arrested-zoe-fortune-teller; Ben Feuerherd, “NYC psychics slapped with probation for supernatural fraud scheme,” New York Post, 2021, https://nypost.com/2021/06/17/nyc-psychics-slapped-with-probation-for-supernatural-fraud-scheme/
[2] New York Penal Law §155.05, https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-3-specific-offenses/title-j-offenses-involving-theft/article-155-larceny/section-15505-larceny-defined
[3] ACLU of Tennessee, “Fortune-Telling Ban Challenged in Federal Court,” ACLU, 2010, https://www.aclu.org/press-releases/fortune-telling-ban-challenged-federal-court
[4] New York Penal Law § 155.05
[5] New York Penal Law § 155.05
[6] New York Penal Law § 155.05
[7] New York Penal Law § 155.05
[8] New York Penal Law § 155.05
[9] New York Penal Law § 155.05
[10] New York Penal Law § 155.05
[11] New York Penal Law § 155.30,
https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-3-specific-offenses/title-j-offenses-involving-theft/article-155-larceny/section-15530-grand-larceny-in-the-fourth-degree
[12] New York Penal Law § 155.35, https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-3-specific-offenses/title-j-offenses-involving-theft/article-155-larceny/section-15535-grand-larceny-in-the-third-degree
[13] New York Penal Law § 155.40, https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-3-specific-offenses/title-j-offenses-involving-theft/article-155-larceny/section-15540-grand-larceny-in-the-second-degree
[14] New York Penal Law § 155.42, https://casetext.com/statute/consolidated-laws-of-new-york/chapter-penal/part-3-specific-offenses/title-j-offenses-involving-theft/article-155-larceny/section-15542-multiple-versions-grand-larceny-in-the-first-degree/1
[15] The Laws of New York, “Article 165 Other Offenses Relating to Theft, Section 165.35 Fortune Telling,” New York Senate, 2014, https://www.nysenate.gov/legislation/laws/PEN/165.35
[16] ACLU of Tennessee, “Fortune-Telling Ban”
[17] Legal Information Institute, “First Amendment,” Cornell Law School, https://www.law.cornell.edu/constitution/first_amendment
[18] Sylvia Varnham O’Regan, “When a Psychic Reading”
[19] The People of the State of New York, Plaintiff, v. Mae Rosenberg, Defendant, 6 Misc. 2d 529 (N.Y. Sup. Ct. 1957), https://scholar.google.com/scholar_case?case=4552088165333429507&q=fortuntelling&hl=en&as_sdt=4,33
[20] The People of the State of New York, Respondent, v. Abraham Ballard, Appellate, 198 A.D.2d 289 (2d Dept. 1993), https://scholar.google.com/scholar_case?case=17761775013428717757&q=fortuntelling&hl=en&as_sdt=4,33
[21] The People of the State of New York, Respondent, v. Victor Sanchez, Appellant, 993 N.Y.S.2d 508 (App. Div. 1994), https://scholar.google.com/scholar_case?case=6046783622561176556&q=fortuntelling&hl=en&as_sdt=4,33
[22] Stefene Russell, “When fortune tellers were Public Enemy No. 1,” Historiola!, 2023, https://historiola.substack.com/p/when-the-paddy-wagon-came-for-the
[23] James C. McKinley Jr., “Psychic Found Guilty of Stealing $138,000 From Clients,” New York Times, 2013, https://www.nytimes.com/2013/10/12/nyregion/greenwich-village-psychic-found-guilty-of-stealing-thousands-from-clients.html; Michael Wilson, “Seeing Freedom in Their Future, Psychics Reveal All: ‘It’s a Scam, Sir’,” New York Times, 2015 https://www.nytimes.com/2015/08/29/nyregion/the-secret-to-the-psychic-trade-its-in-the-parole-board-transcripts.html
[24] Michael Wilson, “Psychic Who Bilked Man of More Than $550,000 Is Set Free,” New York Times, 2016, https://www.nytimes.com/2016/01/27/nyregion/psychic-who-bilked-man-of-more-than-550000-is-set-free.html; Michael Wilson, “With Psychic Jailed, Her Family Kept Telling Fortunes,” New York Times, 2016, https://www.nytimes.com/2016/04/26/nyregion/with-psychic-in-jail-her-mother-in-law-kept-the-family-business-open-the-police-say.html; Michael Wilson, “A Manhattan Fortuneteller Cost Him Fortune After Fortune,” New York Times, 2015, https://www.nytimes.com/2015/06/06/nyregion/he-went-to-the-fortuneteller-now-his-fortune-is-gone.html