| People v Stevens |
| 2009 NY Slip Op 06198 [65 AD3d 759] |
| August 13, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Charlene L.Stevens, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Karen L. Howe of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Cortland County (Campbell,J.), rendered August 7, 2008, upon a verdict convicting defendant of the crimes of insurancefraud in the third degree, falsely reporting an incident in the third degree and offering a falseinstrument for filing in the second degree.
In February 2007, defendant filed a report with the State Police that her truck had beenstolen from her driveway. She notified her insurance company of the theft and put forth a claimfor the loss under her policy. Thereafter, defendant's son reported that he, in fact, had an accidentwith the truck and it was located partially submerged in a pond. Defendant signed a supportingdeposition indicating that her son had stolen her truck, and the son was arrested and charged withthe vehicle's theft. Defendant later admitted that the truck had not been stolen from the driveway,as she had initially claimed. Rather, it had been taken by her son without her permission. Uponfurther investigation, it was determined that defendant had actually been a passenger in the truckwith her son when he drove it off the road and into a nearby pond. As a result, defendant wasarrested and charged with insurance fraud in the third degree, falsely reporting an incident in thethird degree and offering a false instrument for filing in the second degree. A jury subsequentlyfound defendant guilty as charged and an aggregate prison sentence of 2 to 4 years was imposed.Defendant now appeals.
Defendant argues that the conviction of insurance fraud in the third degree was against [*2]the weight of the evidence.[FN1]Inasmuch as a different verdict would not have been unreasonable, we must view the evidence ina neutral light and weigh the probative force of the conflicting testimony and the relativestrength of any conflicting inferences that may be drawn, as well as give due deference to thejury's assessment of the credibility of witnesses who testified and the documentary evidenceintroduced at trial (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Richardson, 55 AD3d934, 935 [2008]; People vPomales, 49 AD3d 962, 963 [2008], lv denied 10 NY3d 938 [2008]; People v Jackson, 48 AD3d 891,892 [2008], lv denied 10 NY3d 841 [2008]; see also People v Romero, 7 NY3d 633, 643 [2006]). Defendantargues that had she filed a claim with her insurance carrier for the damages caused to the vehicleas a result of the accident, she would have been entitled to recover under the policy and,therefore, under the evidence presented, she did not have a "larcenous intent" to commit thiscrime as required under Penal Law § 176.20 (see generally People v Reid, 69NY2d 469 [1987]). Initially, we note that the insurance representative did not, as defendantclaims, affirmatively testify that defendant would have been entitled to collect on such a claimhad she submitted one based on the facts as they actually existed at the time of the accident.Instead, the representative specifically testified that had defendant originally reported the claimas an accident, "a collision claim would have been opened up, and most likely her claimwould have been settled" (emphasis added).[FN2]
Moreover, even if defendant had been entitled to recover under the policy, it is essentiallyundisputed that she submitted a claim that she knew to be false in an attempt to wrongfullyobtain money from the insurance carrier. The commission of the crime of insurance fraud is notdependent upon whether the insured is ultimately entitled to be paid under the policy; it iscommitted when the insured knowingly files false information with the carrier in an attempt tocollect under the policy (see People v Alfaro, 108 AD2d 517, 519-520 [1985],affd 66 NY2d 985 [1985]; see also People v Michael, 210 AD2d 874, 874[1994], lv denied 84 NY2d 1035 [1995]; People v Dybdahl, 144 AD2d 949, 950[1988]). The fact that defendant may have otherwise been entitled to recover under the policydoes not alter the fact that it was her intent to defraud the insurance company by the commissionof a fraudulent insurance act.[FN3]Therefore, the [*3]verdict convicting defendant of insurancefraud in the third degree was not against the weight of the evidence.
Defendant also claims that County Court abused its discretion by permitting the People tocross-examine her—had she chosen to testify—concerning the circumstances thatled to her being previously convicted of driving while intoxicated and aggravated unlicensedoperation of a motor vehicle in the third degree. These convictions, as well as the underlyingacts, are indicative of defendant's willingness to place her individual interest ahead of that ofsociety and were relevant on the issue of her credibility as a witness (see People vSandoval, 34 NY2d 371, 376-377 [1974]; People v Walts, 267 AD2d 617, 619[1999], lv denied 95 NY2d 859 [2000]; People v Trichilo, 230 AD2d 926, 928[1996], lv denied 89 NY2d 931 [1996]). Even if we were to conclude that it was error toallow such inquiry, considering that the jury was permitted to hear a recording in whichdefendant sought to explain to an insurance company representative why she had initiallyreported the truck as stolen,[FN4]"there was simply no possibility—let alone a significant probability—that [her]testimony would have led to an acquittal" (People v Grant, 7 NY3d 421, 425 [2006]; see People v Boodrow, 42 AD3d582, 585 [2007]).
County Court properly denied defendant's request that the jury be instructed as to theelements of the affirmative defense of renunciation as a defense to the insurance fraud charge.As relevant here, renunciation is available as an affirmative defense to a defendant who has beencharged with attempting to commit a crime if "under circumstances manifesting a voluntary andcomplete renunciation of his [or her] criminal purpose, the defendant avoided thecommission of the crime attempted by abandoning his [or her] criminal effort and, if mereabandonment was insufficient to accomplish such avoidance, by taking further and affirmativesteps which prevented the commission thereof" (Penal Law § 40.10 [3] [emphasisadded]; see People v Taylor, 80 NY2d 1, 12-14 [1992]; People v Dolan, 51 AD3d 1337,1339 [2008], lv denied 12 NY3d 757 [2009]). Here, the crime for which defendantstands convicted was completed upon her filing a fraudulent claim with the insurance companyin an attempt to collect under her policy. In short, once the crime in question was committed, thedefense of renunciation is not available as an affirmative defense (see Penal Law §176.20).[*4]
Finally, we are unpersuaded by defendant's claim thatCounty Court erred by admitting into evidence records from the insurance companydocumenting not only defendant's claim that the vehicle was stolen, but also the extent of thedamage the vehicle had sustained in the accident. These documents were admitted only after afoundation was properly laid establishing that each was a business record and, therefore,admissible as an exception to the rule against hearsay (see CPLR 4518 [a]; CPL 60.10;People v Scott, 294 AD2d 661, 663 [2002], lv denied 98 NY2d 731, 732 [2002]).
Mercure, J.P., Rose, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: While defendant's challenge tothe legal sufficiency of the evidence was not preserved for our review (see People v Richardson, 55 AD3d934, 935 n 1 [2008], lv dismissed 11 NY3d 857 [2008]; People v Young, 51 AD3d 1055,1056 [2008], lv denied 11 NY3d 796 [2008]), we "necessarily review the evidenceadduced as to each of the elements of the crimes in the context of our review of defendant'schallenge regarding the weight of the evidence" (People v Caston, 60 AD3d 1147, 1149 [2009]; see People v Danielson, 9 NY3d342, 349 [2007]; People vHayden, 60 AD3d 1155, 1156 [2009]). As such, we reject defendant's claim ofineffective assistance of counsel, since it was based solely upon counsel's failure to move todismiss this charge on the ground that it was not supported by legally sufficient evidence.
Footnote 2: Coverage was ultimately deniedas a result of the fraudulent claim that defendant filed.
Footnote 3: As relevant here, "[a] fraudulentinsurance act is committed by any person who, knowingly and with intent to defraud[,] presents,causes to be presented, or prepares with knowledge or belief that it will be presented to or by aninsurer, . . . or any agent thereof, any written statement as part of, or in support of,. . . a claim for payment or other benefit pursuant to an insurance policy or selfinsurance program for commercial or personal insurance which he [or she] knows to: (i) containmaterially false information concerning any fact material thereto; or (ii) conceal, for the purposeof misleading, information concerning any fact material thereto" (Penal Law § 176.05 [1]).
Footnote 4: During this telephone call,defendant stated that she had "panicked" after the truck had gotten stuck in the pond and wasvery upset about what had happened. At trial, defense counsel suggested that defendant wasafraid of her son and that he had told her to report the vehicle as stolen. In his trial testimony, theson denied telling his mother to report the truck stolen.