| People v Niver |
| 2007 NY Slip Op 08791 [45 AD3d 1051] |
| November 15, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent-Appellant, vWilliam P. Niver, Appellant-Respondent. |
—[*1] Joseph G. Fazzary, District Attorney, Watkins Glen (Matthew C. Hayden of counsel), forrespondent-appellant.
Mugglin, J. (1) Appeal from an order of the County Court of Schuyler County (Argetsinger,J.), rendered May 18, 2006, which partially granted defendant's motion pursuant to CPL 330.30and set aside the verdict convicting him of offering a false instrument for filing in the first degreeunder count 4 of the indictment, and (2) cross appeals from a judgment of said court, renderedMay 18, 2006, upon a verdict convicting defendant of the crimes of grand larceny in the fourthdegree, welfare fraud in the fourth degree and offering a false instrument for filing in the firstdegree.
Defendant was indicted and tried jointly with his wife—with whom heresided—for the crimes of grand larceny in the third degree, welfare fraud in the thirddegree and two counts of offering a false instrument for filing in the first degree. The indictmentwas based on their receipt of public assistance benefits while failing to report the simultaneousreceipt of additional workers' compensation income and their filing of false applications forpublic assistance with the Schuyler County Department of Social Services (hereinafter DSS). Thejury convicted defendant of the lesser included crimes of grand larceny in the fourth degree andwelfare fraud in the fourth degree, while convicting him of both counts of offering a falseinstrument for filing in the first [*2]degree.[FN*]County Court partially granted defendant's CPL 330.30 (1) motion to the extent of dismissingcount 4 of the indictment charging him with filing a false instrument in the first degree.Defendant appeals from the judgment of conviction, asserting that the verdict was against theweight of the evidence. The People appeal from the order partially granting the CPL article 330motion and they cross-appeal from the judgment arguing that the court erred in failing tosentence defendant as a second felony offender and, therefore, the sentence is invalid as a matterof law.
First, we are unpersuaded by defendant's claim that the guilty verdict as to counts 1 and 2was against the weight of the evidence. The People presented a welfare fraud investigator,employed by DSS, who explained the process by which she calculated the amount of publicassistance benefits that defendant wrongfully obtained. Although the calculations made by thisinvestigator resulted in several different figures ranging from $2,445 to $18,311, each calculationwas far in excess of the statutory threshold of $1,000 (see Penal Law § 155.30 [1];§ 158.10). The witness's explanations for the various calculations were well explored oncross-examination and defendant offered no competing calculations for the jury to weigh. On thisrecord, we find that the jury properly discharged its functions of determining the credibility of thewitness and determining the probative value to be given the evidence (see People vBleakley, 69 NY2d 490, 493 [1987]), and the convictions for grand larceny in the fourthdegree and welfare fraud in the fourth degree are not against the weight of the evidence.
Defendant's argument that his conviction for filing a false instrument in the first degree isagainst the weight of the evidence appears to be confined to count 4 of the indictment and weaddress this issue in conjunction with the People's appeal from the order in which they argue thatCounty Court wrongly dismissed this conviction on the ground that the evidence was legallyinsufficient. As is relevant, "[a] person is guilty of offering a false instrument for filing in the firstdegree when, knowing that a written instrument contains a false statement or false information,and with intent to defraud the state . . . he [or she] offers or presents it to a publicoffice . . . with the knowledge or belief that it will . . . become a partof the records of such public office" (Penal Law § 175.35). The record establishes thatalthough defendant's wife completed the June 2004 welfare benefits application, both defendantand his wife executed the application attesting that the information contained therein was correct.Conspicuously absent from the application was any acknowledgment of the potential incomefrom defendant's wife's active workers' compensation claim from which she actually receivedincome both before and after June 2004. Additionally, the record contains evidence establishingfraudulent welfare applications jointly submitted by defendant and his wife, and that despite theawareness of a duty to report any changes in income, neither defendant nor his wife reported hersubsequent workers' compensation income. A rational jury could permissibly infer that defendantcould reasonably anticipate that his wife would receive future workers' compensation benefitsand that the failure to include such income on the welfare application establishes the requisiteintent to defraud. Thus, we conclude both that the evidence was legally sufficient to support thisconviction (count 4) and that the verdict on both false filing counts was not against the weight ofthe evidence (see People v Bleakley, 69 NY2d at 495).[*3]
Finally, County Court erred by not sentencing defendantas a second felony offender. Here, it is undisputed that defendant was convicted of a felony inJanuary 2004 and, although the People's second felony offender statement referenced only count4, the remaining convictions were all felonies. Under these circumstances, and particularly inview of the People's reference to the felony convictions at the time of sentencing, defendantshould have been sentenced as a second felony offender (see Penal Law § 70.06[1]).
Cardona, P.J., Crew III, Rose and Lahtinen, JJ., concur. Ordered that the order and judgmentare modified, on the law, by reversing so much thereof as (1) set aside defendant's conviction ofoffering a false instrument for filing in the first degree under count 4 of the indictment and (2)sentenced defendant; said conviction reinstated and matter remitted to the County Court ofSchuyler County for resentencing as a second felony offender; and, as so modified, affirmed.
Footnote *: Defendant's wife was convictedof these same four crimes (People vNiver, 41 AD3d 961 [2007], lv denied 9 NY3d 924 [2007]).