People v. DeckerPeople v. Decker
Lippes Mathias LLP, Albany (Karl J. Sleight of counsel), for appellant.
Jason M. Carusone, District Attorney, Lake George (Benjamin R. Smith of counsel), for respondent.
McShan, J.
Appeals (1) from a judgment of the County Court of Warren County (John S. Hall Jr., J.), rendered September 9, 2020, upon a verdict convicting defendant of the crimes of grand larceny in the second degree, scheme to defraud in the first degree and offering a false instrument for filing in the first degree (four counts), and (2) from an order of said court, entered November 19, 2020, which set the amount of restitution owed by defendant.
DOS commenced an audit in 2014 pertaining to its 11 contracts with various municipalities receiving grant funding, 10 of which involved defendant and LGWC. The audit raised concerns about defendant‘s financial practices, which prompted investigators to issue two subpoenas to BSNB, one in September 2016 and another in November 2017. In response to the subpoenas, BSNB disclosed defendant‘s bank records to the Warren County District Attorney‘s office in October 2016 and December 2017, respectively. Prior to the issuance of the second subpoena, certain bank and tax records were seized from defendant pursuant to a February 2017 search warrant. Defendant later moved to suppress the evidence garnered from the search and County Court scheduled a Mapp hearing. However, the People represented that they did not intend to proceed with the hearing as their case did not rely on any material seized from the search warrants and, therefore, the court granted the motion.
Based on the foregoing, defendant was charged by a 22-count indictment with a series of theft-related crimes. Prior to trial, the People voluntarily dismissed 14 of the 22 counts; the 8 remaining counts, in their renumbered order, charged: corrupting the government in the first degree (count 1), grand larceny in the second degree (count 2), scheme to defraud in the first degree (count 3), grand larceny in the third degree (count 4) and offering a false instrument for filing in the first degree (counts 5, 6, 7 and 8). At the conclusion of a month-long jury trial, defendant was acquitted of counts 1 and 4, but convicted of counts 2, 3, 5, 6, 7 and 8. He was sentenced to a prison term of 3 to 9 years on count 2, and prison terms of 1 to 3 years on counts 3, 5, 6, 7 and 8, with each sentence to run consecutively, resulting in an aggregate prison term of 8 to 24 years. Following a separate restitution hearing, County Court ordered defendant to pay restitution in the following sums: $77,289 to the state, $129,716 plus interest to the US Department of Agriculture (hereinafter USDA), $4,182 plus interest to the Fort William Henry Hotel and Conference Center (hereinafter FWH), $50,000 plus interest to Warren County and $53,610 plus interest to the FUND for Lake George (hereinafter the FUND). Defendant appeals from the judgment of conviction and from the order of restitution.
Defendant contends that each of his convictions is not supported
Turning first to his conviction of grand larceny in the second degree, defendant primarily argues that the People failed to show that he illegally deprived the US Forest Service (hereinafter USFS), the LCLG Planning Board or anyone else of the $135,000 in grant funds received through the USDA, or that he appropriated that money by false or fraudulent pretenses. At trial, the People presented the testimony of Walter Young, the director of the LCLG Planning Board during the relevant time frame. According to Young, defendant raised the idea of the LCLG Planning Board applying for the USFS grant in 2007, and defendant filled out the application so that the LCLG Planning Board would receive the grant funding since LGWC was not an eligible entity. Young testified that in 2010 and
Consistent with the aforementioned testimony, Thomas Casaregola, the chief of the forensic audit unit for OSC, testified that defendant had submitted multiple invoices to the Town of Queensbury and the LCLG Planning Board in 2012, seeking reimbursement for payments he claimed to have made to ESP and Empire State Equipment for supplying topsoil. Specifically, Casaregola explained that in 2012, defendant received $60,560 from the LCLG Planning Board federal grant. However, defendant had requested and received $99,300 from the Town of Queensbury under Empire State Equipment for topsoil delivery. To this end, Casaregola‘s review demonstrated that only $90,080 was disbursed to ESP pertaining to topsoil delivery, leaving an excess reimbursement to defendant for purported topsoil delivery of $69,780. As to the Chazen invoices, Casaregola explained that defendant had submitted three separate invoices to the Town of Queensbury in 2009 and 2010 that contained bills for services provided by Chazen. Thereafter, defendant submitted an invoice to the LCLG Planning Board in October 2010 that matched the previously submitted invoices and subsequent payments that he had already received from the Town of Queensbury.
Similarly, in 2012, defendant submitted a request and received reimbursement from the LCLG Planning Board for a $69,156.30 payment he claimed to have made to the subcontractor Natural Restorations by Linda J. and Company, Inc. (hereinafter Linda J.). Linda Jedrysik, the owner of Linda J., testified that she worked on the West Brook project for the Town of Queensbury in 2012 and dealt with defendant as the Town‘s representative. According to Jedrysik, she applied to the Town
The trial evidence sufficiently establishes that, between September 2010 and November 2012, defendant submitted invoices to the LCLG Planning Board for payments to Chazen for which he had previously requested and received reimbursement from the Town of Queensbury. Further, the evidence demonstrated that defendant requested and received reimbursement from the LCLG Planning Board based upon fabricated invoices pertaining to Empire State Equipment, ESP and Linda J. As to defendant‘s contention that the contract structure between him and the municipalities, which he couches as a lump-sum arrangement, entitled him to any monies received from the arrangement, such argument fails to account for the two-tier contract structure and, more specifically, his role in the contractual arrangement between the municipalities and DOS, which was testified to at trial and required that the reimbursement requests submitted to DOS be predicated on actual invoices (cf. United States v Davis, 2017 WL 3328240, *18, 2017 US Dist LEXIS 122643, *50-53 [SDNY, Aug. 3, 2017, 13-CR-923 (LAP)]; see generally United States v Evans Landscaping, Inc., 2018 WL 1794336, *3, 2018 US Dist LEXIS 63660, *7-8 [SD Ohio, Apr. 16, 2018, 1:17CR053]; People v DiCarlo, 293 AD2d 279, 280-81 [1st Dept 2002], lvs denied 98 NY2d 767 [2002]). To this end, we reject defendant‘s argument that this arrangement conclusively established his innocence, as he fails to identify any definitive authority in either arrangement that permitted him to submit invoices in amounts that were not actually generated by a subcontractor or for subcontractor work that had previously been paid for in its entirety through other municipalities. Further, we find that the jury was presented with sufficient evidence permitting it to reasonably infer that defendant‘s reimbursement requests utilizing previously
As to his conviction for scheme to defraud in the first degree, defendant argues that the People failed to prove that he perpetrated an ongoing scheme, manifested an intent to defraud anyone or obtained property by false or fraudulent pretenses. At trial, the People presented evidence concerning four separate arrangements underlying this charge, beginning with an invoice from FWH for an event that defendant booked in 2013 for LGWC. An employee of FWH testified that LGWC incurred a $4,128.62 bill for this event, which defendant never paid, despite multiple emails to him requesting payment. The town clerk for the Town of Bolton, Warren County testified that defendant submitted an invoice containing a charge for $4,182.62 paid to FWH sometime during October 2013, and that the Town had paid defendant for this charge as part of a larger check that covered that invoice as well as others. More precisely, Casaregola testified that his review of defendant‘s bank accounts revealed that defendant had received reimbursement for this $4,182.62 expense from the Town of Bolton in January 2014 as part of a $25,877.66 reimbursement. However, Casaregola testified that, after depositing the funds in the LGWC bank account, he transferred $27,575 to the various other accounts that he maintained at BSNB. The trial evidence demonstrated that, despite receiving the reimbursement in 2014, defendant would respond to FWH‘s requests for payment by advising that the state had yet to release the funds to him to pay the bill. Despite FWH‘s ongoing requests for payment, the FWH bill remained outstanding at the time of trial.
For his part, defendant presented testimony from the mayor of the Village of Lake George, Warren County, who acknowledged that the Village‘s accountant had audited certain Village accounts, which revealed that defendant was potentially owed more than $96,000 from the Town of Bolton owing to certain unpaid invoices. However, the mayor acknowledged, and the
Concerning the unpaid invoice from Warren County, Robert Lynch, the deputy treasurer of Warren County, testified that he communicated with defendant regarding the reimbursement from LGWC for certain work referred to as the Finkle Brook project.2 This project was interchangeably referred to as the Valley Woods Road project. Lynch explained that the total amount sought for reimbursement, after accounting for the County‘s share of the work, was $152,500, and that he had asked defendant to have LGWC reimburse $50,000 from the Town of Queensbury for the project in two installments. Lynch testified that Warren County received the $50,000 from LGWC and another $52,500 from the Town of Bolton, and that as of the date of Lynch‘s testimony, Queensbury still owed $50,000 on the project. According to Casaregola, his investigation revealed that defendant had submitted two requests for reimbursement from the Town of Queensbury for $50,000 paid to Warren County for its work on the Finkle Brook project, but his bank records showed that he only made the first payment. Further, Casaregola testified that both reimbursement requests were paid into the LGWC account by the Town of Queensbury.
As to the FUND, the trial testimony reflected that defendant had two separate contracts with the FUND for two separate services pertaining to a boat washing program to decontaminate boats being launched into the lake and protect the lake from aquatic invasive species. The FUND had a contract with LGWC, under which LGWC would reimburse the FUND for $53,610 in payments allocated for providing daytime staffing of boat washing stations through a DOS grant to the Town of Bolton, after LGWC received the necessary funds from DOS.3 A separate invoice for approximately $60,331 pertained to a nighttime boat washing program. Eric Siy, the executive director for the FUND, testified that he emailed defendant in early 2015 asking that LGWC reimburse the FUND. However, when defendant did not provide a clear answer about reimbursement, Siy requested reimbursement
Finally, the People submitted testimony from the former clerk and treasurer for the Village of Lake George, who testified that defendant and the Village had an arrangement which provided defendant with space in the Village‘s office in exchange for defendant bearing responsibility for the Village‘s Internet bill, and that defendant had an outstanding bill in excess of $4,000 at the time of her retirement in 2018. Consistent with that account, the current clerk confirmed that defendant owed the Village of Lake George $4,937.84 for the Internet bill as of the time of her testimony. Casaregola similarly testified that his analysis concluded that defendant had failed to pay the Village of Lake George in the amount indicated by the current clerk despite having invoiced and received reimbursement for Internet expenses from DOS through various contracts.
Defendant attributes his failure to provide these entities with timely payments to delays in reimbursement from DOS during the pendency of its audit. Further, defendant again relies on the lump-sum contract structure in asserting that he had the discretion to provide payment to subcontractors on whatever timeline he deemed appropriate. However, the jury clearly credited the testimony that defendant owed $4,182.62 to FWH, $50,000 to Warren County, $53,610 to the FUND and $4,937.84 to the Village of Lake George. Further, the evidence sufficiently established that defendant had sought and received reimbursement for these expenses but, instead of paying these entities the amounts owed, he retained the funds. The trial evidence also established that despite having received reimbursement for the aforementioned expenses, defendant informed representatives for these entities that he had yet to receive the funds needed to pay them months and years after those funds had already been deposited into the LGWC account. To the extent that defendant contends that the evidence is merely reflective of various isolated instances rather than a scheme, the jury was presented with evidence that this practice extended from 2008 until at least 2014, and its determination that defendant‘s actions constituted a “continuing offense committed over time” is adequately supported (People v Arbas, 85 AD3d 1320, 1322 [3d Dept 2011],
Finally, as to offering a false instrument for filing in the first degree,4 Defendant‘s contention pertaining to the jury charge for the four counts of offering a false instrument for filing in the first degree is without merit. Contrary to defendant‘s contention, the People were not required to prove that the state suffered a financial loss (see
Altogether, the evidence sufficiently supported DTF‘s conclusion that defendant‘s tax returns did not properly reflect his income for each year at issue. Further, there was sufficient evidence to conclude that defendant‘s nonreporting of income followed a distinct pattern — he reported income received in his name, personally or through a business designation, and omitted all income received through his three businesses. Moreover, when defendant attempted to provide amended tax returns to DTF, he altered the amount of money that he won and lost through gambling, and attempted to claim that he was a professional gambler. While the jury could have accepted defendant‘s representations that these errors merely reflected poor accounting practices, taken as a whole, the inconsistencies in defendant‘s taxes are sufficient evidence to support the jury‘s conclusion that he did in fact intend to defraud DTF by knowingly submitting false information regarding his income (see People v Nunez, 160 AD3d 1227, 1228-1229 [3d Dept 2018]; see generally People v Camiola, 225 AD2d 380, 381 [1st Dept 1996], lv denied 88 NY2d 877 [1996]). In this respect, the jury clearly credited Stewart‘s findings that defendant intentionally underreported his income over Ferraro‘s assertion that defendant merely made “honest mistake[s]” when filing his taxes. Altogether, viewing the evidence in a neutral light and deferring to the jury‘s credibility assessments, the verdict as to these convictions is not against the weight of the evidence (see
Defendant next contends that the People did not provide him with adequate notice of the charges against him, pointing specifically to purported deficiencies in the time frames identified
We are unpersuaded that the People committed any discovery violations that require reversal. Initially, defendant offers no authority requiring the People to provide discovery in some specified format or with Bates stamps. Further, we note that defendant‘s argument directed toward the “most egregious” discovery violation, which pertained to a presentation created by DOS, is contradicted in the record, as the People advised that the evidence was previously provided to trial counsel and defendant‘s prior counsel. To the extent that defendant takes exception to the volume of those disclosures, that fact does not
We turn next to defendant‘s argument that the People improperly introduced, and relied upon, evidence seized from his residence, offices and storage facility, despite having later conceded to the suppression of such evidence prior to a Mapp hearing. We disagree. “[T]he exclusionary rule enjoins the government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality” (People v Jordan, 154 AD3d 1176, 1177 [3d Dept 2017]; see People v Elder, 173 AD3d 1344, 1345 [3d Dept 2019], lv denied 34 NY3d 930 [2019]; People v Callicut, 101 AD3d 1256, 1257 [3d Dept 2012], lv denied 20 NY3d 1096 [2013]). In other words, “where the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct” (People v Arnau, 58 NY2d 27, 35 [1982], cert denied 468 US 1217 [1984]; see People v Elder, 173 AD3d at 1345; People v Jordan, 154 AD3d at 1177).
The People initially were in possession of defendant‘s bank records well before the warrant was executed and there is no dispute that those records, along with defendant‘s tax records that were already in the possession of DTF, could be obtained through means of a lawful subpoena. In this respect, defendant‘s contention that the various witnesses for the People relied on suppressed evidence, beyond being contrary to their testimony at trial, is without merit, as the fact that OSC and DTF received the records obtained from the warrant does not obviate that they also possessed the same exact records by lawful means, i.e., the properly issued and unchallenged subpoenas. To this end, defendant points to no indication that the bank and tax records that were relied upon by OSC and DTF were altered or were inaccurate. Accordingly, under the well-established principles of the exclusionary rule, defendant‘s records obtained through the subpoena and relied upon by the People‘s witnesses were untainted and properly admitted (see People v Arnau, 58 NY2d at 33-34; People v Jordan, 154 AD3d at 1177; People v Marshall, 57 AD3d 1163, 1165 [3d Dept 2008], lv denied 13 NY3d 940 [2010]).
Defendant‘s contentions concerning the various evidentiary rulings of County Court are all without merit. First, we are unpersuaded by defendant‘s contentions pertaining to the striking
Further, we discern no error in County Court‘s determination to preclude defendant from presenting recordings of his
We also find no merit to defendant‘s objection concerning the limitations placed on his ability to explore whether political bias motivated the origin of the WCSD criminal investigation. Importantly, the People did not rely on any testimony from members of WCSD, as the bulk of the investigation centered upon an analysis of bank accounts and transactions that was conducted by DOS, OSC and DTF. Accordingly, County Court acted within its discretion in precluding defendant from exploring a collateral issue concerning any potential bias of the WCSD, as the probative value of such evidence was outweighed by the danger that it could confuse or mislead the jury into deciding the case on issues beyond the evidence presented (see People v Davis, 43 NY2d 17, 27 [1977], cert denied 435 US 998 [1978]; People v Plaisted, 2 AD3d 906, 909 [3d Dept 2003], lv denied 2 NY3d 744 [2004]).
Defendant‘s remaining trial-related contentions merit little discussion. We discern no error in the appointment of a special prosecutor from DTF, as the appointment was clearly authorized and, more importantly, the jury was unaware of her role
We are further unpersuaded by defendant‘s contention that various alleged errors pertaining to County Court‘s jury instructions warrant reversal. Beginning with his request for a missing witness instruction, the proponent of such must demonstrate that the witness had knowledge that was material to the case, that the expected testimony would be noncumulative and favorable to the party against whom the charge is sought, and that the witness is available to that party (see People v Savinon, 100 NY2d 192, 197 [2003]; People v Lorenz, 211 AD3d 1109, 1112 [3d Dept 2022], lv denied 39 NY3d 1112 [2023]; People v Banks, 181 AD3d 973, 975 [3d Dept 2020], lv denied 35 NY3d 1025 [2020]). Our review satisfies us that County Court did not abuse its discretion in denying a missing witness charge, as defendant‘s proffer failed to establish that the witnesses he relied on — which consisted of various DOS officials — would have been noncumulative to the testimony of Denick, who testified extensively concerning the DOS audit and was subject to cross-examination (see People v Franqueira, 143 AD3d 1164, 1169 [3d Dept 2016]; People v Stokes, 141 AD3d 1032, 1034 [3d Dept 2016], lv denied 28 NY3d 1075 [2016]). We are similarly unpersuaded that the denial of a circumstantial evidence charge was an abuse of discretion, as the evidence at trial supporting each count consisted of direct evidence — specifically, bank records, invoices and testimony pertaining to unpaid services — alongside the circumstantial evidence of defendant‘s guilt (see People v Hardy, 26 NY3d 245, 250 [2015]; People v Stover, 178 AD3d 1138, 1145 [3d Dept 2019], lv denied 34 NY3d 1163 [2020]; People v Ash, 162 AD3d 1318, 1322 [3d Dept 2018], lv denied 32 NY3d 1002 [2018]). Defendant‘s contention that a claim of right instruction was warranted also
As to defendant‘s contention that he was entitled to a geographical jurisdiction charge pertaining to the false instrument counts, we initially find that his argument is properly preserved by virtue of his request for a charge pursuant to
Turning to defendant‘s sentence, we initially reject his contention that the sentence constituted a trial penalty, as “the mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof positive that . . . defendant was punished for asserting his . . . right to trial” (People v Flower, 173 AD3d 1449, 1458 [3d Dept 2019], lv denied 34 NY3d 931 [2019]). As to his request to reduce his sentence in the interest of justice, we reject defendant‘s characterization of his offenses as “victimless,” as it fails to account for the harm to public confidence that flows from the theft of public funds. To that end, while we have carefully considered the various factors raised in support of his request — such as defendant‘s health and military service — his criminal conduct perpetrated over a number of years and his lack of remorse satisfies us that the sentence is not unduly harsh or severe and we therefore decline his invitation to modify it (see People v Caraballo, 213 AD3d 1142, 1145 [3d Dept 2023]; see also People v Casalino, 204 AD3d 1078, 1083 [3d Dept 2022], lv denied 38 NY3d 1070 [2022]; People v Marshall, 106 AD3d 1, 11 [1st Dept 2013], lv denied 21 NY3d 1006 [2013]; People v Madison, 104 AD3d 1025, 1025 [3d Dept 2013]; People v Provost, 25 AD3d 1016, 1017 [3d Dept 2006], lv denied 6 NY3d 817 [2006]).
We further reject defendant‘s contentions concerning County Court‘s restitution order, as our review of the hearing satisfies us that the People met their burden to demonstrate the amount taken minus any benefit conferred (see People v Tzitzikalakis, 8 NY3d 217, 221-222 [2007]; People v Decker, 139 AD3d 1113, 1118 [3d Dept 2016], lv denied 28 NY3d 928 [2016]). Further, we discern no abuse of discretion in County Court‘s decision to deny defendant‘s subpoenas, which we agree were overbroad and sought cumulative information to the voluminous submissions already provided. To this end, we find that defendant was properly provided ” ‘with a reasonable opportunity to contest the People‘s evidence or supply evidence on his own behalf’ ” (People v Connolly, 27 NY3d 355, 359 [2016], quoting People v Consalvo, 89 NY2d 140, 146 [1996]). Defendant‘s remaining
Egan Jr., J.P., Aarons, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment and the order are affirmed, and matter remitted to the County Court of Warren County for further proceedings pursuant to