[967 N.Y.S.2d 617] Martir and Associates, by Carlos A. Martir, Jr., Newton, PA, for defendant.
Cyrus R. Vance, Jr., District Attorney New York County (Gregory B. LeDonne of counsel), for Plaintiff.
RUTH PICKHOLZ, J.
In 2011, Alicia Ifill, facing the prospect of spending the next two to six years in prison after being caught embezzling nearly $200,000, plotted to save herself by means of a yet another fraud. This time her dupes were to include the sentencing court and the District Attorney's office. The plan required her to find a fresh source of funds and an actor who would lend convincing weft to the fabric of her deception. She stole from a second employer to obtain the cash she needed, and relied upon her uncle, defendant Henderson Ifill, to play the part of a multimillionaire. The two marched into the District Attorney's office and successfully carried off the imposture. When her fabrications later unraveled Henderson Ifill found himself charged with two counts of criminal possession of stolen property in the second degree. He went to trial and was convicted of both counts. I reserved decision on his motions for a trial order of dismissal. I now find that, although the evidence at trail may have established that he engaged in criminal behavior, his acts cannot be construed to constitute the crime of criminal possession of stolen property.
The genesis of the indictment before me lies in another crime entirely. Sometime prior to the events at issue here Alicia Ifill stole approximately $190,000 from Stellar Management, for whom she worked. After the theft came to light the New York County District Attorney's Office prosecuted her for the crime. The office apparently explored whether she could make restitution, but learned that she would not be able to do so. She pleaded guilty to grand larceny in the second degree in return for [967 N.Y.S.2d 618] the court's promise that she would receive an indeterminate
prison term of from two to six years. The court did not remand her after the plea, and granted her a lengthy adjournment for sentence so that she could set her affairs in order. On the day set for sentence Ms. Ifill informed the court that she intended to hire a new attorney. The court then adjourned the case once more. Several days prior to the new sentence date the successor attorney, Alden Lewis, Esq., telephoned Mr. Kratville, the assistant district attorney in charge of the prosecution, to ask what his position would be if Ms. Ifill were to make restitution. Mr. Kratville responded that he was prepared to listen to a proposal. Two days later, on the rescheduled sentence date, Mr. Lewis came to court with his client and a cashier's check for $75,000 dated October 5, 2011. The check was drawn on the account of Eagle Rock Capital Management. The court (Lewis Bart Stone, J.) adjourned the case to formulate a position on an appropriate sentence if she were to make full restitution, and for the People to determine exactly how much Ms. Ifill had stolen from Stellar Management. Mr. Kratville told Mr. Lewis that, as Ms. Ifill had stolen funds from Stellar, he needed proof that the source of the restitution was legitimate. Not only did he want to see documentation showing the source of the money, but he wanted to meet the person who was providing it.
Over the next few weeks Mr. Lewis sent the prosecutor several documents. He revealed that the Ms. Ifill's uncle, Henderson Ifill, (the defendant before me) would be making restitution. Kratville told Lewis that he wanted to see much more documentation than he had so far been provided, and insisted on meeting the uncle. On November 14, 2011, a few days prior to the next scheduled court date, Lewis, Alicia Ifill, and a man who introduced himself as Henderson Ifill met Kratville at the District Attorney's Offices. They brought numerous documents with them.
Henderson Ifill told Kratville that he had made a good living as an electrician for 42 years, and that he had invested his savings, which had appreciated greatly. He had accumulated several million dollars by the time he retired, and he was willing to give $75,000 to his niece so that she could make restitution. He made clear that his investments were the source of the $75,000 cashier's check. Kratville explained that $75,000 would not suffice, because the judge now wanted her to make full restitution in the amount of $188,000. Henderson Ifill stated
that he wanted some time to consider whether he wished to give this much larger sum. Kratville was nevertheless under the impression that he eventually would agree to provide all of the money.
At the end of the meeting Kratville spoke privately with Mr. Ifill. When the prosecutor asked him whether he expected his niece to repay him, Ifill told him that he imagined that his niece would make small payments from time to time, but that he would never get all of his money back. Kratville asked him why he was doing this for her. Ifill responded that he had made a great deal of money and felt that it was his duty to use it to benefit his family, especially a family member he loved and cared for so much.
Among the documents that Kratville received that day were records of a brokerage account with a company named BTIG. Henderson Ifill's name did not appear on the BTIG documents, but Ifill represented [967 N.Y.S.2d 619] that the money in the BTIG account was his. Kratville was also given bank records of two entities— Mountainview Special Fund and Eagle Rock Capital Management, and a Mountainview spreadsheet which showed Henderson Ifill putting in and taking out of the account sums in the amount of $50,000 and $100,000. It was explained to Kratville by both the uncle and niece that Mr. Ifill's money in the BTIG brokerage account was invested in Mountainview Special Fund, but that he did not make direct transfers in or out of the fund. In order to minimize his tax exposure, the funds instead passed through Eagle Rock, which he owned. The Mountainview records confirmed that large transfers of money went to Eagle Rock. Nothing in the materials that Kratville he had been given indicated that Henderson Ifill owned the assets of Eagle Rock. He therefore asked for additional documentation. He also asked to speak with someone from BTIG. Several days later he received documents that satisfied him as to Mr. Ifill's ownership of Eagle Rock. He later spoke with someone who represented that he worked at BTIG. That person assured him that Ifill had put the money into the account bit by bit over many years. His suspicions allayed, Kratville did not make any further inquiries.
Kratville spoke to his supervisor about these events, and the two decided that if Henderson Ifill were to agree to pay the full restitution amount, they would recommend that the court sentence Alicia Ifill to a definite one-year jail term. The parties next appeared in court on December 22. ...