Mischel & Horn, PC, New York (Richard E. Mischel of
counsel), for appellant.
Letitia James, Attorney General, New York (Dennis A. Rambaud
of counsel), for respondent.
Friedman, J.P., Richter, Kern, Singh, JJ.
Supreme Court, Bronx County (Jeanette Rodriguez-Morick, J.),
rendered March 23, 2018, convicting defendant, after a jury
trial, of grand larceny in the second degree, and sentencing
him to a term of 2 to 6 years, unanimously affirmed. The
matter is remitted to Supreme Court for further proceedings
pursuant to CPL 460.50(5).
was convicted of grand larceny in the second degree under a
theory of false pretenses (Penal Law § 155.05[a]) for
stealing more than $50, 000 from Narco Freedom, Inc., a
not-for-profit drug rehabilitation program, between January
1, 2009 and December 31, 2013. The indictment alleged that
defendant, while "acting in concert and aided and
abetted by others," and as part of a "common scheme
or plan," "received salary and benefits from Narco
Freedom, directly and through B & C Management, that he
was not entitled to" receive.
legal sufficiency claims, including those relating to
corroboration of accomplice testimony, are unpreserved, and
we decline to review them in the interest of justice. As an
alternative holding, we also reject them on the merits. We
also find that the verdict was not against the weight of the
evidence (see People v Danielson, 9 N.Y.3d 342,
348-349 ). Moreover, we find that the evidence
overwhelmingly established a shared larcenous intent and acts
by defendant in furtherance of the crime so as to support a
conviction under a theory of accomplice liability
(see Penal Law § 20.00). Defendant's
pattern of conduct, viewed as a whole, had no reasonable
explanation other than a shared larcenous intent (see
e.g. People v Williams, 123 A.D.3d 527');">123 A.D.3d 527 [1st
Dept 2014], lv denied 25 N.Y.3d 1209');">25 N.Y.3d 1209 ), and
there was ample proof of acts he took in aid of the
fraudulent schemes. Accordingly, we need not reach the issue
of whether the People also established direct liability,
including the elements of misrepresentation and reliance
(see Penal Law § 155.05[a]; People v
Drake, 61 N.Y.2d 359, 362 ), an issue about which,
in any event, defendant improperly raises new arguments in
his reply brief (see e.g. People v Edwards,
58 A.D.3d 412');">58 A.D.3d 412 [1st Dept 2009], lv denied 12 N.Y.3d
815 ). In view of the evidence, the jury reasonably
rejected defendant's claim that his salary from Narco
Freedom paid for his work at another not-for-profit entity,
Canarsie AWARE, and there is no basis to disturb the
jury's credibility determinations.
error in the court's rereading, in its response to a jury
note, of only the elements of the crime, without certain
definitions, was harmless in view of the overwhelming
evidence of defendant's guilt under a theory of
accomplice liability, to which the definitions at issue would
not have been material (see People v Crimmins, 36
N.Y.2d 230 ).
court providently exercised its discretion under People v
Molineux (168 NY 264, 293 ) in admitting payroll
payments made by Canarsie AWARE into the bank accounts of
defendant's children, which defendant then transferred to
a joint account with his wife. The evidence was probative on
the issue of defendant's intent to steal from Narco
Freedom, as it showed that the payments into the
children's bank accounts were ultimately intended for
defendant, as part of a scheme, which included payments for
defendant's no-show job at Narco Freedom. Furthermore, it
tended to refute defendant's anticipated defense that
Narco Freedom was paying for his work at Canarsie AWARE, by
showing that Canarsie AWARE was paying him, albeit
indirectly, through his children. The probative value of the
evidence was not outweighed by any potential for prejudice.
It did not suggest that defendant took money that his
children actually earned, but rather, strongly suggested that
the children performed no work for Canarsie AWARE and that
the money deposited into their accounts was intended for
defendant from the start.
the court incorrectly concluded that defendant opened the
door to otherwise inadmissible evidence of similar payments
made by another entity. Nevertheless, the error was harmless,
in view of the court's limiting instructions and the
overwhelming evidence of guilt.
remaining contentions are unpreserved, and we decline to
review them in the interest of justice. As an ...