| People v Norman |
| 2017 NY Slip Op 07490 [154 AD3d 1185] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Meikka C.Norman, Appellant. |
Brian M. Quinn, Albany, for appellant, and appellant pro se.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered December 7, 2015, upon a verdict convicting defendant of the crimes of offering a falseinstrument for filing in the first degree and attempted welfare fraud in the fifth degree.
Defendant and her family received benefits from the Saratoga Department of Social Services(hereinafter DSS) under a Supplemental Nutrition Assistance Program (hereinafter SNAP).Following an investigation by DSS, defendant was charged by indictment with offering a falseinstrument for filing in the first degree and attempted welfare fraud in the fourth degree. A jurytrial ensued and, after the close of all proof, County Court dismissed the charge of attemptedwelfare fraud in the fourth degree and submitted to the jury the lesser included offense ofattempted welfare fraud in the fifth degree. Defendant was subsequently convicted of offering afalse instrument for filing in the first degree and attempted welfare fraud in the fifth degree.County Court sentenced defendant, as a second felony offender, to an aggregate prison term of 2to 4 years. Defendant appeals. We affirm.
Defendant initially argues that the indictment was jurisdictionally defective because thePeople presented false evidence to the grand jury. We disagree. Approximately three weeks priorto the commencement of the trial, the People informed County Court that DSS calculated thatdefendant intended to receive an additional $594 in benefits over a three-month period asopposed to $1,073 as originally calculated and presented to the grand jury. As a consequence, thePeople moved to amend the second count of the indictment charging defendant with [*2]attempted welfare fraud in the fourth degree to attempted welfarefraud in the fifth degree.[FN1] Given that the People took immediatecorrective action and there is no indication that the People "knowingly permitted any inaccuratetestimony to stand" (People v Davis,83 AD3d 1210, 1212 [2011], lv denied 17 NY3d 794 [2011]; see People v Bean, 66 AD3d 1386,1386 [2009], lv denied 14 NY3d 769 [2010]), the exceptional remedy of dismissing theindictment is not warranted (seegenerally People v Miller, 110 AD3d 1150, 1150 [2013]).
Defendant's argument that the verdict was not supported by legally sufficient evidence isunpreserved for our review inasmuch as her motion to dismiss at trial did not address the specificgrounds now being raised on appeal (seePeople v Novak, 148 AD3d 1352, 1353 [2017], lv denied 29 NY3d 1084 [2017];People v Marquis A., 145 AD3d61, 64 [2016]). Nevertheless, because defendant also argues that the verdict was against theweight of the evidence, we review the evidence as to each element of the crimes for which shewas convicted (see People vDanielson, 9 NY3d 342, 349 [2007]; People v Launder, 132 AD3d 1151, 1151 [2015], lv denied27 NY3d 1153 [2016]). The People do not dispute that an acquittal would not have beenunreasonable and, therefore, we "weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" (People v Ackerman, 141 AD3d948, 949 [2016] [internal quotation marks and citations omitted], lv denied 28 NY3d1181 [2017]; People v Bost, 139AD3d 1317, 1320 [2016]).
At trial, a DSS welfare examiner testified that SNAP eligibility was determined based uponvarious factors, including shelter and day care expenses, the number of individuals in ahousehold and income. After qualifying for SNAP benefits, a party with income must recertifygenerally every six months and report changes, some of which may lead to increased benefits. IfDSS received a change prior to when a party had to seek recertifcation, the change would takeeffect the next month. In July 2014, the DSS welfare examiner received a faxed invoice fromdefendant reflecting YMCA day care expenses of $153 per week for her two children covering afour-week period in the summer of 2014. As a consequence, the welfare examiner contacted theYMCA to verify these expenses. The YMCA billing coordinator testified that a search of theYMCA records pertaining to defendant's children revealed that they were not registered for campin 2014. The billing coordinator reviewed the 2014 invoice from DSS and stated that it did not"correlate with what [was] in our system." The billing coordinator further testified that thepayment identification number on the 2014 invoice corresponded to a receipt that had beenprocessed in 2012 when defendant's children attended the camp that summer. The DSS welfareexaminer subsequently referred the matter to the fraud department.
A DSS fraud investigator testified that when she went to defendant's house, defendant invitedher in and they initially discussed her household composition and income. The fraud investigatorstated that when she asked defendant about the 2014 invoice submitted to DSS, defendant"admitted that she had printed off the receipt from the . . . YMCA and adjusted the[*3]information and submitted it to SNAP."[FN2] The fraud investigator also statedthat defendant explained to her that she did not believe that such submission "would make adifference whether or not she would receive more SNAP benefits." According to the fraudinvestigator, defendant's explanation did not make sense because recipients of SNAP benefitssubmit day care expenses for the purpose of receiving an increase in benefits. Indeed, theprincipal examiner for SNAP testified that in 2012, defendant's benefits had increased basedupon submitted day care expenses. Furthermore, the DSS welfare examiner and fraudinvestigator both testified that had the information reported on the 2014 invoice been accurate,defendant's benefits would have increased.
Viewing the foregoing evidence in a neutral light, the jury could rationally infer thatdefendant, with the intent to defraud DSS, submitted a forged receipt in order to increase herbenefits. To the extent that defendant offered an explanation for submitting a forged receipt, thejury was entitled to reject such explanation (see People v Peters, 277 AD2d 512, 514[2000]). According deference to the jury's credibility determinations, we conclude that the verdictwas supported by the weight of the evidence (see People v Hure, 16 AD3d 774, 775 [2005], lv denied 4NY3d 854 [2005]; People v Swain, 309 AD2d 1173, 1174 [2003], lv denied 1NY3d 581 [2003]; People v Cruz, 245 AD2d 963, 963 [1997], lv denied 91 NY2d1006 [1998]).
We reject defendant's assertion that County Court should have suppressed her oral andwritten statements made to the DSS fraud investigator that she altered the 2014 invoice andsubmitted it to DSS. Contrary to defendant's contention, the DSS fraud investigator was notacting as an agent of law enforcement officials when she interviewed defendant at her homeinasmuch as there was no indication that the police directed, prompted or attended the interview(see People v Rodriguez, 135 AD3d1181, 1184-1185 [2016], lv denied 28 NY3d 936 [2016]; People v Lewis, 83 AD3d 1206,1208 [2011], lv denied 17 NY3d 797 [2011]; People v Whitmore, 12 AD3d 845, 847 [2004], lvs denied 4NY3d 769, 892 [2005]). Furthermore, the DSS fraud investigator testified at the Huntleyhearing that she did not have the authority to arrest defendant and that such decision rested withher supervisor and the District Attorney's office. Nor does the record support defendant'scontention that her statements were a product of deceit or duress so as to render them involuntary(see People v Spencer, 16 AD3d918, 919 [2005], lv denied 5 NY3d 770 [2005]; People v Bridges, 16 AD3d 911, 912 [2005], lv denied 4NY3d 884 [2005]; People v Bentley, 106 AD2d 825, 826 [1984]). Accordingly, CountyCourt properly denied defendant's motion to suppress.
We also reject defendant's challenge to County Court's Sandoval ruling. As part oftheir Sandoval proffer, the People sought to question defendant, if she testified, aboutthree prior convictions, all of which were larceny related. Taking into account that theseconvictions bore upon defendant's credibility and the fact that County Court precluded the Peoplefrom questioning defendant about a 1995 conviction and limited the extent upon which thePeople could question defendant about the two remaining prior convictions, we find no abuse ofdiscretion in County Court's Sandoval ruling (see People v Iovino, 149 AD3d 1350, 1353 [2017], lvdenied 30 NY3d 950 [Sept. 20, 2017]; People v Mould, 143 AD3d 1186, 1188 [2016], lv denied28 NY3d 1187 [2017]; People vCapers, 129 AD3d 1313, 1317 [2015], lv denied 27 NY3d 994[2016]).
[*4] Defendant's remaining arguments,including her challenge to County Court's evidentiary ruling pertaining to the admission ofphotographs of her house into evidence and her challenge to the severity of the imposed sentence,have been examined and are determined to be without merit.
Peters, P.J., Garry, Rose and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Welfare fraud in the fourthdegree requires the People to establish that a person commit "a fraudulent welfare act and therebytakes or obtains public assistance benefits, and . . . the value of the public assistancebenefits exceeds [$1,000]" (Penal Law § 158.10). The elements of welfare fraud inthe fifth degree are the same except that there is no monetary threshold (see Penal Law§ 158.05).
Footnote 2:The fraud investigator prepared awritten statement embodying what defendant told her, which defendant subsequently reviewedand initialed.