| People v Brown |
| 2013 NY Slip Op 04367 [107 AD3d 1145] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidC. Brown, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Mara Y. Grace of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Cerio Jr., J.), renderedJune 17, 2009 in Broome County, upon a verdict convicting defendant of the crime ofgrand larceny in the third degree.
Defendant is a Freemason and member of Masonic Lodge 177 in the City ofBinghamton, Broome County. In September 2003, while defendant was master of thelodge and his father, Clarence Brown, was treasurer, Brown withdrew $40,000 from thelodge's bank account. The withdrawal included an $18,000 bank check payable to theChenango County treasurer, which defendant used to pay his delinquent real propertytaxes on a parcel he owned in Chenango County, and a $1,000 check payable todefendant. When the withdrawal was discovered, defendant was charged with grandlarceny in the third degree. After a jury found him guilty, Supreme Court[FN*]sentenced him to five months in jail, five years of probation and $19,000 restitution.Defendant appeals.
The evidence was legally sufficient and the verdict was not against the weight of the[*2]evidence. A person is guilty of grand larceny in thethird degree when he or she, "with intent to deprive another of property or to appropriatethe same to himself [or herself] . . . , wrongfully takes, obtains or withholdssuch property from an owner" and the property is valued in excess of $3,000 (Penal Law§ 155.05 [1]; see Penal Law § 155.35 [1]; People v Bonneau, 94 AD3d1158, 1159 [2012], lv denied 20 NY3d 985 [2012]). Larcenousintent—the only element challenged by defendant—"is rarely susceptible ofproof by direct evidence, and must usually be inferred from the circumstancessurrounding the defendant's actions" (People v Russell, 41 AD3d 1094, 1096 [2007], lvdenied 10 NY3d 964 [2008]). In a prosecution for larceny by embezzlement, it is adefense "that the property was appropriated under a claim of right made in good faith"(Penal Law § 155.15 [1]).
Defendant testified that he received the $1,000 check for reimbursement and the$18,000 was in exchange for a five-year lease on his Chenango County property, to beused by members of the lodge or as a camp for children, but he admitted that there wasnever a written lease agreement and members never used his property. Other members ofMasonic Lodge 177 testified that they were not aware of any lease or the payment of$18,000 to defendant, and these topics were never discussed or voted on at a formalmeeting as was required by the organization's rules. No meeting minutes memorialize anysuch discussion or vote. Viewed in a light most favorable to the People and giving themthe benefit of every favorable inference, the evidence was legally sufficient to establishdefendant's larcenous intent (seePeople v Lowin, 71 AD3d 1194, 1196-1197 [2010]; People v Russell,41 AD3d at 1096). Neutrally weighing the conflicting evidence regarding whetherdefendant followed the proper procedure to obtain lodge funds, whether the membershipvoted on the disbursements, and whether minutes and financial records were lost orhidden by defendant or never created, and giving deference to the jury's credibilitydeterminations, the verdict was not against the weight of the evidence (see People vBonneau, 94 AD3d at 1159; People v Holmberg, 243 AD2d 893, 895[1997], lv denied 91 NY2d 874 [1997]).
County Court (Cawley, J.) did not err in allowing evidence of defendant's unchargedprior conduct to show lack of mistake. Although evidence of uncharged crimes isgenerally inadmissible, the People may introduce such evidence if it is probative andrelevant to a material issue, such as to show the absence of a mistake and negate anallegedly innocent state of mind (see People v Molineux, 168 NY 264, 293[1901]; People v Bourne,46 AD3d 1101, 1103 [2007], lv denied 10 NY3d 762 [2008]). Defendantcontended that he believed the expenditure that covered his delinquent taxes was properbased on an alleged handshake deal for a lease. The court determined, based on thiscontention, that the People could introduce evidence that defendant had a fellow Masonwrite checks on Masonic Lodge 177's account on five separate occasions for substantialamounts without any alleged handshake deals and without obtaining member approvalthrough the procedure required under Masonic rules. The court also permitteddefendant's brother, who was a lodge member, to testify that defendant gave him twochecks from a Masonic Lodge 177 account for the purpose of paying the brother's backtaxes and mortgage, despite these expenditures not being discussed or approved at aformal meeting of the members. Considering the defense that defendant was authorizedto obtain the check in exchange for an oral lease, this testimony could assist the jury indetermining his intent, was probative and relevant to show an absence of mistake bydefendant regarding the $18,000 check, and was not unduly prejudicial (see People vBourne, 46 AD3d at 1103; People v Wilcox, 194 AD2d 820, 820-821[1993]).
Defendant was not deprived of his right to present witnesses in his defense. While a[*3]court implicates a defendant's 6th Amendment rightswhen it prospectively precludes a defense witness from testifying, a defendant's right topresent evidence is not absolute, but is subject to rules of evidence and procedure(see Taylor v Illinois, 484 US 400, 410-411 [1988]; People v Kelly, 288AD2d 695, 697 [2001], lv denied 97 NY2d 756 [2002]). "The accused does nothave an unfettered right to offer testimony that is incompetent, privileged, or otherwiseinadmissible under standard rules of evidence" (Taylor v Illinois, 484 US at 410;accord People v Bradford, 300 AD2d 685, 686 [2002], lv denied 99NY2d 612 [2003]).
Supreme Court did not abuse its discretion by precluding defendant from offeringirrelevant testimony. Defendant intended to present a witness who would testify thatdefendant discussed with her, in approximately 2004, the concept of creating a camp forchildren and investigating sources of financing. The court properly determined that theselater discussions were not relevant as proof of defendant's intent at the time that hereceived the $18,000 check in 2003. Defendant sought to introduce the testimony ofBrian Sloat, a member of Masonic Lodge 177, that it was common practice in the areafor Masons to not strictly adhere to Masonic rules, Masonic Lodge 177 had sufficientmoney and $18,000 would not put the lodge at financial risk, and there was animositybetween defendant and his successor in the position of master who ultimately reporteddefendant to the police. The court ruled that Sloat could not testify with respect to thelevel of adherence to Masonic rules because he did not become a member until a fewyears after the events in question and his testimony therefore lacked relevance. The courtalso precluded Sloat from testifying with respect to whether $18,000 was a significantsum of money in comparison to the lodge's finances, as this was irrelevant; theft of anyamount of money is inappropriate. The court ruled that Sloat could testify about theanimosity, but defendant declined to call Sloat for this limited purpose. Before the courtissued any ruling regarding Cliff Olin, defendant withdrew his request to have thatwitness testify; hence, any argument regarding Olin is not properly before us. Given thatSupreme Court's rulings were premised on the irrelevant nature of the proposedtestimony, the court did not abuse its discretion in precluding that testimony (seeTaylor v Illinois, 484 US at 410; People v Bradford, 300 AD2d at 686).
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: This case was initiatedin County Court, but was transferred to Supreme Court prior to trial.