| People v Rogers |
| 2018 NY Slip Op 00046 [157 AD3d 1001] |
| January 4, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Rogers, Appellant. |
Trevor W. Hannigan, Albany, for appellant.
Eric T. Schneiderman, Attorney General, New York City (James F. Gibbons of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Rensselaer County (Young, J.),rendered September 23, 2016, upon a verdict convicting defendant of the crime of grand larcenyin the third degree.
In May 2010, a State Police investigator (hereinafter the investigator) commenced aninvestigation of alleged drug trafficking by correction officers at the Rensselaer County Jail. Theinvestigator thereafter also began looking into the possible misuse of funds by officials of thecorrection officers' union, the Sheriff's Employees Association of Rensselaer County (hereinafterSEARCO). Defendant, a correction officer at the jail, was not a target of the drug investigation.However, as the vice-president of SEARCO, he and the union president, Mark Piche,subsequently became targets of the SEARCO inquiry.
In early 2011, the Rensselaer County District Attorney recused himself, and bothinvestigations were taken over by the US Attorney's office for the Northern District of NewYork. The drug investigation terminated in November 2011, but an extensive investigation ofSEARCO's finances continued. In September 2013, Piche pleaded guilty to a federal tax felonypursuant to an agreement that he would testify against defendant. A federal grand jury wasconvened in 2014, but defendant was not indicted. Federal prosecutors subsequently determinedthat defendant's activities did not constitute federal offenses, and the Attorney General's officetook over the prosecution.
[*2] Defendant wasindicted on four charges arising out of the SEARCO investigation in October 2015. He moved todismiss the indictment on several grounds. County Court conducted a Singer hearing todetermine whether there was good cause for the delay in prosecution and denied the motion.After a jury trial, defendant was convicted of grand larceny in the third degree.[FN1] County Court denied defendant'stwo CPL 330.30 motions to set aside the verdict, conducted a restitution hearing, sentenceddefendant to 60 days in prison and five years of probation, and ordered him to pay $10,979.14 inrestitution. Defendant appeals.
County Court correctly declined to dismiss the indictment on the ground that the AttorneyGeneral's office lacked jurisdiction to prosecute defendant. County Law § 700 (1)confers the duty and authority to conduct criminal prosecutions upon county district attorneys,and the Attorney General has prosecutorial power only "when specifically authorized by statute"(People v Gilmour, 98 NY2d 126, 131 [2002] [internal quotation marks and citationsomitted]; see People v Cuttita, 7NY3d 500, 507 [2006]). Such authority is provided by Executive Law § 63 (3),which states, as pertinent here, that upon the request of "the head of any . . .department, authority, division or agency of the state," the Attorney General may investigate andprosecute potentially illegal activity that falls within the authority of the officer who made therequest. These statutory requirements were met by a May 2015 letter from the Superintendent ofthe State Police that asked the Attorney General to review and, if appropriate, prosecute theSEARCO matter (see People vMiran, 107 AD3d 28, 35 [2013], lv denied 21 NY3d 1044 [2013], certdenied 572 US &mdash, 134 S Ct 2312 [2014]; People v Stuart, 263 AD2d 347,348-349 [2000]). Contrary to defendant's argument, the prosecutorial authority established bythis request was not negated because the Attorney General's staff had previously reviewedinvestigation files, spoken with participants in the federal investigation and informed theinvestigator that a referral pursuant to Executive Law § 63 (3) was required (seePeople v Codina, 297 AD2d 539, 541 [2002], lv dismissed 98 NY2d 767 [2002];Matter of L & S Hosp. & Inst. Supplies Co. v Hynes, 84 Misc 2d 431, 435-436[1975], affd 51 AD2d 515 [1976]).
We reject defendant's contention that the indictment should have been dismissed on theground that the prosecution was not commenced within the five-year limitations periodapplicable to grand larceny in the third degree (see CPL 30.10 [2] [b]; Penal Law§ 155.35). "It is well settled that grand larceny may be charged as a series of singlelarcenies governed by a common fraudulent scheme or plan even though the successive takingsextended over a long period of time" (People v Arnold, 15 AD3d 783, 785 [2005] [internal quotationmarks and citations omitted], lv denied 4 NY3d 851 [2005]; see People v Cox,286 NY 137, 142-143 [1941]). When so charged, grand larceny is a continuing crime, and thestatute of limitations begins to run upon the commission of the last offense in the series (see People v Perry, 114 AD3d1282, 1283 [2014], lv denied 22 NY3d 1201 [2014]; People v Arnold, 15AD3d at 785; see also People vScanlon, 52 AD3d 1035, 1037 [2008], lv denied 11 NY3d 741 [2008]; People v DeBeer, 35 AD3d 1275,1276 [2006], lv denied 8 NY3d 921 [2007]).
The proof established that Piche and defendant were named as SEARCO's senior officersshortly after they formed SEARCO with a third individual in 2004.[FN2] SEARCO members [*3]paid dues to the union via mandatory paycheck deductions, and thefunds were deposited into a SEARCO bank account. Piche and defendant were the onlysignatories on this account and were both issued debit cards. Piche testified that he and defendantused this account to pay for such SEARCO expenditures as legal fees, expenses related toSEARCO operations and meetings, and charitable donations. Piche wrote checks to cover theseexpenses and never used his debit card. Defendant used his debit card, sometimes in Piche'spresence. In 2009, Piche reviewed the bank statements and noticed that defendant's debit cardhad been used for "a lot of expenditures." The People assert that defendant used the debit card onmultiple occasions between 2006 and 2009 for restaurant meals, cash withdrawals and othertransactions for his own benefit rather than SEARCO purposes.
After a discussion with SEARCO's counsel, Piche transferred the union funds to anotheraccount where defendant had no check-signing privileges and no debit cards were issued.Defendant continued to make charitable donations on SEARCO's behalf by requesting checksfrom Piche, who testified that he sometimes signed blank checks for this purpose and gave themto defendant to complete. Defendant requested two such checks in July 2010 and January 2011,telling Piche that they were for donations to support the career of a local boxer. Piche signed thechecks and gave them to defendant without filling in the payee's name, and defendant made themout to an organization called Pugnacious Promotions, the first in the amount of $1,200 and thesecond in the amount of $600. The People assert that Pugnacious Promotions was a for-profitbusiness that organized boxing events but did not provide donations or individual sponsorshipsto boxers. They claim that defendant used the 2010 and 2011 checks for his own benefit topurchase ringside tables at boxing events.
We are unpersuaded by defendant's contention that the change in defendant's modus operandito using checks to obtain SEARCO funds after he lost access to the debit card represented a new,separate scheme that cannot be aggregated with the previous offenses, and that the statute oflimitations therefore began to run when defendant last used the debit card in December 2009.The indictment charged defendant with grand larceny in the third degree based on thefts fromSEARCO between August 2006 and January 2011, and the People's theory as to all of the allegedthefts was that defendant relied upon his authority as a union official to access SEARCO fundsthat were intended to be used for union purposes, and used them instead to benefit himself. Eachsingle larceny was alleged to be part of a common fraudulent scheme by which defendant made aseries of thefts from the same owner for the same purpose. Thus, the offenses were properlyaggregated as one continuing crime that terminated upon the last transaction in January 2011, andthe action was timely commenced less than five years later with the filing of a criminal complaintin July 2015 (see CPL 1.20 [17]; People v Perry, 114 AD3d at 1283; People vArnold, 15 AD3d at 785).
County Court properly denied defendant's motion to dismiss the indictment on the groundthat his due process rights were violated by the delay between the 2011 commencement of theSEARCO investigation and defendant's 2015 indictment. A defendant's due process rights areviolated when preindictment delay is unjustified (see People v Decker, 13 NY3d 12, 14 [2009]; People vLesiuk, 81 NY2d 485, 490 [1993]). Where, as here, the delay is protracted, the burden is onthe People to establish good cause (see People v Decker, 13 NY3d at 14; People vSinger, 44 NY2d 241, 254 [1978]; People v Montague, 130 AD3d 1100, 1101 [2015], lvdenied 26 NY3d 1090 [2015]). "[T]he relevant factors include the extent of the delay, reasonfor the delay, nature of the underlying charges, any extended pretrial incarceration and anyindications of [*4]prejudice or impairment to the defenseattributable to the delay" (People vRuise, 86 AD3d 722, 722-723 [2011] [internal quotation marks and citation omitted],lv denied 17 NY3d 861 [2011]; see People v Vernace, 96 NY2d 886, 887 [2001];People v Taranovich, 37 NY2d 442, 445 [1975]).
The SEARCO investigation was formally commenced in January 2011, when the StatePolice received a written complaint that SEARCO officials were misusing union funds. Thedelay of more than four years between this event and defendant's October 2015 indictmentweighs in defendant's favor, but the other factors favor the People. Defendant was notincarcerated during this time period, and he does not assert that he was prejudiced by the delay.As for the nature of the crime, the allegations required a complex investigation and involved aserious abuse of the trust of SEARCO members over a significant time period.
The remaining factor of the reason for the delay must be scrutinized with particular carebecause the length was "extraordinary" (People v Chaplin, 134 AD3d 1148, 1149 [2015], lv denied27 NY3d 1067 [2016]). The investigator testified that the drug investigation was alreadyunderway when the possible abuse of SEARCO funds was discovered, and that the drugallegations were initially given higher priority because they involved public safety concerns.Nevertheless, the investigator sent out subpoenas in the SEARCO investigation immediatelyafter the written complaint was received. Shortly thereafter, due to concern about potential leaks,both investigations were transferred from the Rensselaer County District Attorney's office to theUS Attorney's office. The investigator continued to advance the SEARCO inquiry by, amongother things, involving other federal agencies and sending out additional subpoenas for pertinentfinancial records. The investigation required many witness interviews and the collection andanalysis of voluminous bank records, receipts and other financial documentation. Thistime-consuming task was significantly complicated by defendant's failure to maintain accuraterecords, which required investigators to obtain documentation from the various vendors andreconstruct and analyze the transactions to determine which expenditures were related toSEARCO purposes (see People vGreen, 52 AD3d 1263, 1264-1265 [2008], lv denied 11 NY3d 788 [2008]).
Piche's 2013 cooperation agreement provided significant assistance to the investigation, butdid not lead to evidence supporting federal charges against defendant. The Attorney General'soffice took over the prosecution and began reviewing the federal investigatory materials after asharing order was issued in December 2014. Following this review, the Attorney General's officeadvised the investigator in March 2015 that it intended to prosecute defendant and that a formalrequest pursuant to Executive Law § 63 (3) was required. The referral was providedin May 2015, the criminal action was commenced in July 2015, and defendant was indicted inOctober 2015. Considering the complexity of the required analysis, the initial priority given tothe drug investigation for public safety reasons, and the importance of Piche's cooperation indeveloping the case against defendant, we find that the People established good cause for thedelay in prosecution and that defendant's due process rights were not violated (see id.;see also People v Decker, 13 NY3d at 14-16; People v Chaplin, 134 AD3d at1149-1150; People v Gaston, 104AD3d 1206, 1206-1207 [2013], lv denied 22 NY3d 1156 [2014]).
Defendant's argument that state prosecutors could have exercised their concurrentjurisdiction to begin prosecuting defendant for state offenses while the federal investigation wasongoing disregards the fact that such an approach would have been highly impractical, as itwould have required the People either to duplicate federal efforts or to proceed against defendantbefore the State Police investigation was complete and before Piche's cooperation was obtained.As neither state nor federal authorities engaged in any unreasonable delay, we find no merit indefendant's argument that state prosecutors should be charged with delay occasioned by the [*5]federal investigation as "coordinate arms of the state in the criminallaw enforcement field" (People v Montague, 130 AD3d at 1102).
We reject defendant's contention that his conviction is not based upon legally sufficientevidence and is against the weight of the evidence. The voluminous records submitted by thePeople detailed multiple occasions between 2006 and 2009 when defendant's debit card was usedat restaurants, bars and strip clubs, for purchases of liquor and for cash withdrawals. Pichetestified that SEARCO routinely conducted its meetings and other union business in restaurantsand bars at union expense, that he and defendant often used union funds to pay for restaurantmeals and bar visits after they finished conducting union business or during meetings withSEARCO's counsel, and that union funds were also used to purchase food and beverages forunion meetings. However, even after investigators excluded every transaction that could becorrelated with such union-related activities and every transaction at which Piche recalled that hewas present, thousands of dollars in unexplained transactions and cash withdrawals remained.SEARCO's accountant testified that he warned defendant in 2007 that debit cards and cashshould not be used for SEARCO expenditures because of the lack of internal controls, andadvised defendant to maintain thorough documentation of any such transactions that did occur.Nevertheless, undocumented debit card transactions and cash withdrawals continued to appear inthe bank records. Notably, the People's evidence reveals that SEARCO's spending droppedsharply after defendant lost the use of the debit card, including much less frequent spending atbars and restaurants.
As for the two checks, Piche testified that SEARCO often used checks to make charitabledonations, in amounts that typically ranged from $200 to $500. He believed that the signed checkthat he provided to defendant in June 2010 would be used to support a certain local boxer, didnot know the check would be made out to Pugnacious Promotions, and did not learn until laterthat defendant had made it out in the amount of $1,200. As for the January 2011 check, thePeople placed into evidence a recorded telephone conversation in which defendant could beheard asking Piche for a $400 check because "[his] boxer [was] fighting." Piche protested thatthe boxer was not a charity and that defendant could not "just keep giving the guy. . . 400 bucks," but defendant responded that the boxer was a charity because heneeded to raise money to fight. Despite Piche's testimony that defendant specifically requestedthe checks, SEARCO's accountant testified that when he asked defendant about the purpose ofone of the Pugnacious Promotions checks, defendant claimed that he did not know what it wasfor.
The People presented evidence that Pugnacious Promotions organized boxing events inSaratoga County in July 2010 and February 2011—that is, shortly after each of the checkswas written. A former promoter for the company testified that she operated it with a partner, thatringside seats and tables were often available at boxing events for much higher prices than thosecharged for general admission tickets, and that $1,200 would likely have represented the price ofa ringside table at the July 2010 event. Although she stated that local organizations sometimessponsored boxing events and that their names were used in related advertisements and publicrelations materials, she did not recall that SEARCO had ever acted in such a capacity. Further,she stated that although boxers sometimes had their own separate sponsors, such sponsorshipshad nothing to do with Pugnacious Promotions.
Defendant contends that there was no proof that any of the transactions were unauthorizedand, thus, that defendant had the necessary intent to steal funds from SEARCO. As defendantnotes, "[i]n a prosecution for larceny by embezzlement, it is a defense 'that the property wasappropriated under a claim of right made in good faith' " (People v Brown, 107 AD3d 1145,1146 [2013], lv denied 22 NY3d 1039 [2013], quoting Penal Law § 155.15[1]). [*6]Nevertheless, "[l]arcenous intent . . . israrely susceptible of proof by direct evidence, and must usually be inferred from thecircumstances surrounding the defendant's actions" (People v Brown, 107 AD3d at 1146[internal quotation marks and citation omitted]). We note that defendant and Piche wereSEARCO's only senior officers and the only persons with the power to authorize the use ofSEARCO funds. Considered in the light most favorable to the People, the evidence provided avalid line of reasoning and permissible inferences from which the jury could rationally havefound beyond a reasonable doubt that defendant committed grand larceny in the third degree byintentionally misappropriating more than $3,000 in SEARCO funds for his own benefit ratherthan for union purposes (see People v Brown, 107 AD3d at 1146-1147; People vBisner, 260 AD2d 665, 667-668 [1999], lv denied 93 NY2d 1014 [1999]; Peoplev Clark, 122 AD2d 389, 391-392 [1986], lv denied 68 NY2d 913 [1986]). Further,viewing the evidence in a neutral light and giving deference to the jury's credibility assessments,the verdict was not against the weight of the evidence (see People v Brown, 107 AD3d at1147; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant next contends that his right to a fair and impartial jury was violated when CountyCourt failed to discharge a grossly unqualified juror. After the jury had been impaneled and thePeople's first witness had testified, juror No. 6 advised County Court that his nephew and hisnephew's wife were employed as correction officers at the Rennselaer County Jail. Upon furtherinquiry, the juror stated that he did not see these relatives often and had not seen them recently,had no plans to see them in the next week and had never discussed the case with them. Defendantcontends that the juror should have been disqualified based upon the juror's responses to CountyCourt's first two questions about the effect of this relationship upon his impartiality. First, whenthe juror was asked whether he believed that the fact that his relatives worked at the jail wouldprevent him from being fair and impartial, he responded, "Yeah, they both work there." He wasthen asked whether he thought that he would be prevented from being fair andimpartial—and responded, "Yes, I do."
However, each and every one of the juror's subsequent statements affirmed his impartiality.When asked how his ability to be fair and impartial would be affected, the juror answered, "Idon't know how it would. I don't think it would." Likewise, when the court asked whether therelationship was going to affect him or not, he said, "No, it's not." The juror then affirmed that hecould "make that promise to the [c]ourt and to the parties" and repeated his prior assurances thathe had not discussed the case with his relatives or spoken with them recently and knew nothingabout the case other than what he had heard in the courtroom. He further confirmedunequivocally that he could set aside his family relationship and decide the case based upon theevidence and the proven facts, and that he could apply the law as given to him. Based upon thejuror's assurances of impartiality, the court declined to discharge him.[FN3]
Despite the belated nature of the juror's revelation, "concealment of any information duringvoir dire is [not] by itself cause for automatic reversal" of a refusal to discharge a sworn juror(People v Rodriguez, 100 NY2d 30, 34 [2003]). Nor is it clear that any actualconcealment occurred; the record suggests that the juror may not have heard all of the voir direquestions [*7]pertaining to the Rensselaer County Jail. Much ofthis questioning took place during voir dire of a second panel of jurors after the first sevenjurors—presumably including juror No. 6—had already been selected from the firstpanel and excused for the remainder of the day. Notably, when the juror was asked why he hadnot disclosed the relationship during voir dire, he responded, "[A]ll you discussed wasunions."
A prospective juror may be excused for cause because of "a state of mind that is likely topreclude him [or her] from rendering an impartial verdict" (CPL 270.20 [1] [b]), butdisqualification of a sworn juror requires a higher standard. At this juncture, the record mustreveal "an obviously partial state of mind" and "convincingly demonstrate that the sworn jurorcannot render an impartial verdict" (People v Spencer, 29 NY3d 302, 309, 310 [2017]; see People vBuford, 69 NY2d 290, 298 [1987]; People v Cridelle, 112 AD3d 1141, 1146 [2013]). No suchdemonstration was made here. Read within the context of the entire colloquy, the juror's initialnegative responses may instead reasonably be understood to result from misunderstanding of thequestions, which were phrased in a compound form. Thereafter, the juror unequivocally affirmedhis ability to put the relationship aside and render a fair and impartial verdict. County Court'squestions about the nature of the juror's relationship with his relatives constituted the requisite"probing and tactful inquiry" (People v Buford, 69 NY2d at 299), and, upon review, wedo not find the refusal to discharge the juror to be an abuse of discretion (see People v Parrilla, 27 NY3d400, 405 [2016]; People vPeele, 73 AD3d 1219, 1220 [2010], lv denied 15 NY3d 894 [2010]; People vMason, 299 AD2d 724, 725 [2002], lv denied 100 NY2d 564 [2003]).
We find no merit in defendant's contention that he was deprived of a fair trial by twocomments during the prosecutor's summation. Nothing in the first challenged commentimproperly shifted the burden of proof to defendant to demonstrate that his expenditures wereauthorized (see People v Barber, 13AD3d 898, 900 [2004], lv denied 4 NY3d 796 [2005]; People v Townsley,240 AD2d 955, 958-959 [1997], lv denied 90 NY2d 943 [1997], lv denied uponreconsideration 90 NY2d 1014 [1997]), and the prosecutor's remarks regarding the jury'sresponsibility to decide whether defendant made the expenditures for his own benefit or that ofSEARCO were fair responses to defendant's argument that it was not the jury's role to decidewhether the expenditures were proper (see generally People v Wynn, 149 AD3d 1252, 1256 [2017], lvdenied 29 NY3d 1136 [2017]; People v Pine, 82 AD3d 1498, 1502 [2011], lv denied 17NY3d 820 [2011]).
Finally, defendant challenges the amount of the restitution award. At the hearing, the Peoplerelied upon the testimony of an investigator from the State Police Financial Crimes Unit, whodescribed the detailed process by which investigators excluded all debit card expenditures thatcould be related to SEARCO activities and determined that $5,979.14 in unexplainedexpenditures remained. He further testified that SEARCO's bank records revealed $5,000 in cashwithdrawals, that none of this amount was shown to be related to any SEARCO purpose, and thatPiche had told investigators that cash was not used to conduct union business.[FN4] This evidence was sufficient toestablish the amount of the loss on a prima facie basis, shifting the burden of going forward todefendant "to offer evidence contradicting the People's calculation" (People v Tzitzikalakis, 8 NY3d217, 221 n 2 [2007]; accord Peoplev Decker, 139 AD3d 1113, 1118 [2016], lv denied 28 NY3d 928 [2016]).Defendant's argument that the People failed to exclude [*8]thepossibility that some of the expenditures were legitimate does not constitute such evidence.County Court properly determined the amount of the award (see People v Ortiz, 148 AD3d 1291, 1293 [2017]; People v Stevens, 84 AD3d 1424,1427 [2011], lv denied 17 NY3d 822 [2011]).
Clark, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Rensselaer County for further proceedings pursuant toCPL 460.50 (5).
Footnote 1:Defendant was acquitted of twoother charges, and one was dismissed before trial.
Footnote 2:Defendant also served asSEARCO's treasurer for an unspecified period. The third individual was named as SEARCO'ssecretary, but never took an active role in the union's operations or finances.
Footnote 3:It bears noting that, out of thejuror's presence, defense counsel informed County Court that one of the relatives may have takenover the management of SEARCO after Piche and defendant left their posts. Nonetheless, absentany indication that the juror knew of such a connection, this possibility does not alter ourdetermination.
Footnote 4:The witness also testified that thePugnacious Promotions checks were not shown to be related to any SEARCO purpose, butCounty Court excluded the checks from the award, finding that the hearing testimony did notprove that defendant himself benefitted from the full amount of those funds.