The opinion of the court was delivered by: Stein, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: January 15, 2009
Before: Peters, J.P., Lahtinen, Kavanagh and Stein, JJ.
Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered August 7, 2006, upon a verdict convicting defendant of the crimes of grand larceny in the second degree (five counts), grand larceny in the third degree (two counts) and scheme to defraud in the first degree.
Defendant, a financial advisor, formed an estate planning business with his son and solicited customers through targeted mailings. Among other things, defendant's clients entrusted him with funds for investment in exchange for a guaranteed rate of return. Upon defendant's failure to make certain periodic payments to clients as promised, the Attorney General commenced an investigation, which resulted in an indictment charging defendant with five counts of grand larceny in the second degree, two counts of grand larceny in the third degree and one count of scheme to defraud in the first degree. After trial, defendant was convicted on all eight counts. County Court sentenced him to an aggregate prison term of 19 to 59 years*fn1 and ordered him to pay restitution in the amount of approximately $1.9 million. Defendant now appeals.
Initially, we find no merit to defendant's contention that County Court erred in granting the People's motion to amend the bill of particulars to clarify that the victims named in counts 1 through 7 of the indictment (the counts charging defendant with grand larceny) were not the only victims of count 8 (relating to the charge of scheme to defraud)*fn2. The fact that the amendment added more victims to the alleged scheme to defraud and expanded the duration of the scheme did not change the theory of the case and, thus, did not result in a constructive amendment to the indictment (see People v West, 271 AD2d 806, 807-808 , lv denied 95 NY2d 893 ; compare People v Grega, 72 NY2d 489, 499-500 ; see also CPL 200.70 ; People v Brown, 196 AD2d 428, 430 , lv denied 82 NY2d 804 ).
Furthermore, a bill of particulars may generally be amended at any time, provided that "no undue prejudice will accrue to defendant and that the prosecutor has acted in good faith" (CPL 200.95 ; People v Wright, 13 AD3d 803, 804 , lv denied 4 NY3d 857 ). Any claim of prejudice to defendant here is belied by the fact that, when faced with the proposition that County Court would allow the People to present the additional witnesses, defendant declined an offer of additional time to prepare for trial. Nor is there any evidence of bad faith on the part of the prosecutor. In fact, the identities of the witnesses/victims were disclosed to defendant in the early stages of the prosecution.
We also disagree with defendant's assertion that County Court's denial of his challenge for cause to prospective juror No. 105 was reversible error. Initially, this juror indicated to defense counsel that he thought defendant would not have been indicted unless he was guilty. The court then asked the juror whether he could set aside that feeling "and follow the law exactly as I give it to you, including that most basic principle of law . . . that [d]efendant is presumed to be innocent?", to which juror No. 105 replied, "Yes." The court further asked him if he could do so "[w]ithout hesitation or reservation?" and the juror responded, "True." When defense counsel continued to press the issue of the presumption of innocence, the juror indicated that he believed the defense team had a "responsibility . . . to prove [defendant's innocence] to us beyond a doubt." This exchange caused the court to intervene again and explain that "[o]nly the People . . . have the burden of proof. The [d]efendant does not have to prove his innocence. He doesn't have to prove anything." After this explanation, juror No. 105 indicated that he understood and was able to follow the law "in principle." Being dissatisfied with this response, the court told the juror that, "when you qualify it in principle, it requires me to press you further." The following colloquy between the court and the juror then ensued:
JUROR 105: Well, I bring into here, into this courtroom, the fact that I'm an emotional human being, so I have to work with myself and my intellect, to allow my intellect to be open-minded and objective, so this is a constant struggle I have . . . That's why I say in principle, because I will always have those struggles.
THE COURT: Do you have any reason to believe that your struggle will be unsuccessful?
Upon further probing by defense counsel as to whether this juror believed that he was required to prove his client's innocence, juror No. 105 responded, "No. This is my first experience [as a ...