People v. ThomasPeople v. Thomas
The People of the State of New York, Respondent, v Yvonne Thomas, Appellant. The People of the State of New York, Respondent, v Heyward Mitchell, Appellant. The People of the State of New York, Respondent, v Samuel O. Forson, Appellant. [866 NYS2d 22]—
Judgment, Supreme Court, New York County (James A. Yates,
Judgment, same court and Justice, rendered December 6, 2001, convicting defendant Heyward Mitchell, after a jury trial, of enterprise corruption, violation of
Judgment, same court and Justice, rendered December 6, 2001, convicting defendant Samuel O. Forson, after a jury trial, of enterprise corruption, violation of
Order, same court and Justice, entered on or about December 6, 2001, which, to the extent appealed from, denied defendants Thomas’s and Mitchell’s
As to each defendant and each count, the verdict was based on legally sufficient evidence (see People v Norman, 85 NY2d 609, 620 [1995]) and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). In a prior decision involving other defendants in the same case, this Court described the activities of defendants’ securities firm as a “wide-ranging ‘Ponzi scheme’, selling fraudulent investment agreements and certificates,” and “misrepresent[ing] to clients that their money was being invested in legitimate, risk-free securities that would pay high returns, while in reality the money was being spent by defendants and their accomplices.” (People v Dowling, 266 AD2d 18, 18 [1999]).
The evidence supports the conclusion that each defendant made false promises while acting with the requisite intent for larceny by false promise (see e.g. People v Luongo, 47 NY2d 418 [1979]), as well as being guilty of scheme to defraud and violation of
There was sufficient corroboration of accomplice testimony (see People v Besser, 96 NY2d 136, 143-144 [2001]), such as investment contracts signed by defendants Mitchell and Forson and the testimony of investors who dealt directly with those defendants. Furthermore, where there is a common scheme or plan, “evidence corroborating an accomplice with respect to one offense is sufficient to provide the required corroboration with respect to the other similar crimes” (People v Mensche, 276 AD2d 834, 835 [2000], lv denied 95 NY2d 966 [2000]).
The record, when viewed in light of the presumption of regularity (see e.g. People v Dominique, 90 NY2d 880, 881 [1997]), establishes that the People fulfilled the special procedural requirements for charging enterprise corruption set forth in
The court offered or provided suitable remedies that were sufficient to prevent defendants from being prejudiced by a brief reference to an inadmissible prior bad act by Mitchell; the People’s belated disclosure, during trial, of certain notes, photographs, and a videotape; and a substantive meeting between a prosecutor and one of the People’s witnesses during a break in that witness’s cross-examination (see People v Ortiz, 54 NY2d 288, 292 [1981]; People v Young, 48 NY2d 995, 996 [1980]). The court properly exercised its discretion in denying all of defendants’ mistrial motions. Defendants’ additional claims of prosecutorial misconduct are without merit.
Between the verdict and sentencing, defendants made
As an alternative holding, we also reject these claims on the merits. In particular, we note that the People’s nondisclosure of a case pending against one of their witnesses for operating a motor vehicle while intoxicated did not constitute a violation of
To the extent that defendants’ postverdict motions also alleged improper conduct by or toward jurors (see
We reject Forson’s ineffective assistance of counsel, excessive sentence, and delay in sentencing claims, as well as Thomas’s claim that she should be resentenced. Defendants’ remaining contentions are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Concur—Lippman, P.J., Tom, Williams, McGuire and Freedman, JJ.