| People v DeDeo |
| 2009 NY Slip Op 01361 [59 AD3d 846] |
| February 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Dominick J. DeDeo, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Lisa E. Fleischmann of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Columbia County (Czajka, J.),rendered August 7, 2006, upon a verdict convicting defendant of the crimes of grand larceny inthe second degree (five counts), grand larceny in the third degree (two counts) and scheme todefraud in the first degree.
Defendant, a financial advisor, formed an estate planning business with his son and solicitedcustomers through targeted mailings. Among other things, defendant's clients entrusted him withfunds for investment in exchange for a guaranteed rate of return. Upon defendant's failure tomake certain periodic payments to clients as promised, the Attorney General commenced aninvestigation, which resulted in an indictment charging defendant with five counts of grandlarceny in the second degree, two counts of grand larceny in the third degree and one count ofscheme to defraud in the first degree. After trial, defendant was convicted on all eight counts.County Court sentenced him to an aggregate prison term of 19
Initially, we find no merit to defendant's contention thatCounty Court erred in granting the People's motion to amend the bill of particulars to clarify thatthe victims named in counts one through seven of the indictment (the counts charging defendantwith grand larceny) were not the only victims of count eight (relating to the charge of scheme todefraud).[FN2]The fact that the amendment added more victims to the alleged scheme to defraud and expandedthe duration of the scheme did not change the theory of the case and, thus, did not result in aconstructive amendment to the indictment (see People v West, 271 AD2d 806, 807-808[2000], lv denied 95 NY2d 893 [2000]; compare People v Grega, 72 NY2d 489,499-500 [1988]; see also CPL 200.70 [1]; People v Brown, 196 AD2d 428, 430[1993], lv denied 82 NY2d 804 [1993]).
Furthermore, a bill of particulars may generally be amended at any time, provided that "noundue prejudice will accrue to defendant and that the prosecutor has acted in good faith" (CPL200.95 [8]; People v Wright, 13AD3d 803, 804 [2004], lv denied 4 NY3d 857 [2005]). Any claim of prejudice todefendant here is belied by the fact that, when faced with the proposition that County Courtwould allow the People to present the additional witnesses, defendant declined an offer ofadditional time to prepare for trial. Nor is there any evidence of bad faith on the part of theprosecutor. In fact, the identities of the witnesses/victims were disclosed to defendant in the earlystages of the prosecution.
We also disagree with defendant's assertion that County Court's denial of his challenge forcause to prospective juror No. 105 was reversible error. Initially, this juror indicated to defensecounsel that he thought defendant would not have been indicted unless he was guilty. The courtthen asked the juror whether he could set aside that feeling "and follow the law exactly as I giveit to you, including that most basic principle of law . . . that [d]efendant ispresumed to be innocent?", to which juror No. 105 replied, "Yes." The court further asked him ifhe could do so "[w]ithout hesitation or reservation?" and the juror responded, "True." Whendefense counsel continued to press the issue of the presumption of innocence, the juror indicatedthat he believed the defense team had a "responsibility . . . to prove [defendant'sinnocence] to us beyond a doubt." This exchange caused the court to intervene again and explainthat "[o]nly the People . . . have the burden of proof. The [d]efendant does not haveto prove his innocence. He doesn't have to prove anything." After this explanation, juror No. 105indicated that he understood and was able to follow the law "in principle." Being dissatisfiedwith this response, the court told the juror that, "when you qualify it in principle, it requires meto press you further." The following colloquy between the court and the juror then ensued:
"juror 105: Well, I bring into here, into this courtroom, the fact that I'm an emotional humanbeing, so I have to work with myself and my intellect, to allow my intellect to be open-mindedand objective, so this is a constant struggle I have . . . That's why I say in principle,because I will always have those struggles.
"the court: Do you have any reason to believe that your struggle will be unsuccessful?
"juror 105: No."
Upon further probing by defense counsel as to whether this juror believed that he wasrequired to prove his client's innocence, juror No. 105 responded, "No. This is my firstexperience [as a juror], so you know, I'm learning as I go along."
Based on the foregoing, we find that County Court elicited a sufficiently "unequivocalassurance" that juror No. 105 could uphold the presumption of innocence and judge the facts in afair and impartial manner (People v Arnold, 96 NY2d 358, 362-363 [2001]; seePeople v Williams, 63 NY2d 882, 884-885 [1984]; People v Porlier, 55 AD3d 1059, 1061 [2008]). Therefore, wediscern no abuse of discretion in County Court's denial of defendant's challenge for cause.
We turn next to defendant's contention that the verdict was against the weight of theevidence, particularly with respect to the element of intent. As relevant here, in order to convictdefendant of the larceny charges, the People were required to prove that he wrongfully took,obtained[FN3]or withheld his clients' money with the intent to deprive them of such funds or to appropriatethem to himself (see Penal Law § 155.05 [1]). With regard to the charge of schemeto defraud, it was necessary for the prosecution to establish "a systematic ongoing course ofconduct with intent to defraud more than one person or to obtain property from more than oneperson by false or fraudulent pretenses, representations or promises" (Penal Law § 190.65[1] [b]).
In support of their theory that defendant had orchestrated a "Ponzi scheme" to defraud olderclients out of money, the People presented the testimony of defendant's son and numerous formerclients of defendant as to their financial dealings with him. Defendant's son testified, amongother things, that he and defendant solicited customers from mailing lists of people over the ageof 45 or 50. He also testified that defendant had established a bank account in the son's name inorder to avoid certain tax problems and repeatedly signed the son's name to checks drawn onsuch account. Five clients testified that, after being solicited by defendant, they liquidated assets,invested the proceeds with defendant in exchange for his promise of a certain rate of return andnever recouped what they were promised. They also testified that defendant failed to return theprincipal invested by them despite their requests that he do so.
Nearly a dozen witnesses testified that they were asked by defendant to invest funds, eitherdirectly with him or in his real estate holdings business, in exchange for rental income and/or afavorable rate of return that never materialized and resulted in the loss of substantial sums ofmoney. By way of example, one 84-year-old victim—who originally responded todefendant's mail solicitation and hired him to draft a trust for her—failed to receiveinterest payments promised on money invested to fund the trust and eventually lost her home dueto defendant's failure to repay money that she had loaned to him. Another witness testified thathe [*3]and his wife initially hired defendant to draft a trust andlater signed over to him the proceeds of certain assets based upon his promise of a higher rate ofreturn. They also gave defendant money for the specific purpose of purchasing shares of aparticular stock. Defendant never purchased that stock, paid no interest on the investments andrefunded only a small fraction of the principal.
There was further testimony that defendant failed to return phone calls and changed hisaddress without notifying his clients of his whereabouts. The evidence also demonstrated thatdefendant repeatedly failed to respond to requests for return of investment principal and wouldprovide empty assurances in order to stave off investors and/or secure more "investments" fromthem. One witness testified that, when he and his wife finally confronted defendant and askedwhat he had done with their money, defendant replied, "I spent it" and also said, "You knowwhat, I'm no good bastard [sic]."
Defendant did not testify or call any witnesses at trial. In arguing the absence of larcenousintent, he points to evidence that certain clients received lump-sum payments, to evidence ofclients whose initial investments were successful, to the "modest" rates of return promised (8%to 15%), and to the lack of any evidence that defendant attempted to evade the authorities. Heclaims that the evidence as a whole indicates merely that his financial endeavors failed as a resultof poor business practices.
In exercising our authority to review the weight of the evidence, we must "review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson,9 NY3d 342, 348 [2007]; seePeople v Romero, 7 NY3d 633, 636 [2006]; People v Bleakley, 69 NY2d 490,495 [1987]; People v Khuong DinhPham, 31 AD3d 962, 964 [2006]). Viewing the evidence in a neutral light and giving"appropriate deference to the jury's superior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d 594 [2006], lv denied 7NY3d 756 [2006]), even if a different finding would not have been unreasonable, we concludethat the verdict was not contrary to the weight of the credible evidence (see People vBleakley, 69 NY2d at 495). Inasmuch as "[f]raudulent intent is usually not susceptible ofproof by direct evidence and must ordinarily be inferred from circumstantial evidence"(People v Sala, 258 AD2d 182, 188-189 [1999], affd 95 NY2d 254 [2000]), inour view, there is ample support in the record for the jury's conclusion that defendant neverintended to make good on his promises to clients. The People's theory that defendant solicitedolder clients, learned of their financial status by drafting trusts, and then convinced them toinvest their assets with no intent to fulfill his promises to them regarding theirinvestments—and, instead, with the intent of benefitting himself—is substantiatedby the testimony of his son regarding defendant's business practices and by the abundanttestimony of his former clients evidencing his continuous course of conduct for over a decade.That defendant never intended to repay their money can be inferred from, among other things,his pattern of targeting older clients, his record of failing to repay large sums of money in full ornot at all, his repeated failure to follow through on specific requests from his clients that hereturn their initial investment, his repeated excuses for such failure, and his attempts to evadetheir efforts to contact him.
Under the circumstances of this case, we also reject defendant's argument that the sentencewas harsh and excessive. In view of the predatory nature and duration of defendant's crimes, thenumber of victims and the severe impact that defendant's conduct had upon his victims and theirfamilies, among other things, we are not persuaded that the factors argued by defendant inmitigation are so extraordinary as to warrant a reduction in his sentence (see People [*4]v Provost, 25 AD3d 1016, 1017 [2006], lv denied6 NY3d 817 [2006]; People vLanfair, 18 AD3d 1032, 1034 [2005], lv denied 5 NY3d 790 [2005]).
We further find defendant's pro se arguments to be without merit. His claims regarding lackof geographic jurisdiction are negated by the evidence that the bank account in which defendantdeposited money taken from the victims was in Columbia County and that he met some of thevictims in their homes within that county (see CPL 20.40 [1] [a]; People v Bigness, 28 AD3d 949,950 [2006], lv denied 7 NY3d 810 [2006]). With regard to the order directing thepayment of restitution, defendant waived his right to have a hearing to challenge the amountthereof. Furthermore, although he did not waive his objection to the order insofar as it directedthe payment of restitution to those not named in the indictment and/or who did not testify, suchobjection is also without legal basis (see Penal Law § 60.27; People vHall-Wilson, 69 NY2d 154, 157-158 [1987]; People v Prewett, 126 AD2d 86, 89-90[1987], lv dismissed 70 NY2d 693 [1987]). We have considered defendant's remainingcontentions and similarly find them to be unavailing.
Peters, J.P., Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Pursuant to Penal Law §70.30 (1) (e) (i), the sentence will be automatically reduced to 10 to 20 years.
Footnote 2: This amendment allowed thePeople to use additional witnesses as direct proof on count eight and as indirect proof of intenton counts one through seven.
Footnote 3: "A person obtains property byfalse promise when, pursuant to a scheme to defraud, he [or she] obtains property of another bymeans of a representation, express or implied, that he [or she] . . . will in the futureengage in particular conduct, and when he [or she] does not intend to engage in such conduct"(Penal Law § 155.05 [2] [d]).