| People v Oberlander |
| 2009 NY Slip Op 02020 [60 AD3d 1288] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AlexisOberlander, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedApril 16, 2007. The judgment convicted defendant, upon a jury verdict, of grand larceny in thesecond degree and offering a false instrument for filing in the first degree (12 counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,counts 1 through 12 of the indictment are dismissed and a new trial is granted on count 13 of theindictment.
Memorandum: Defendant appeals from a judgment convicting her following a jury trial of12 counts of offering a false instrument for filing in the first degree (Penal Law § 175.35)and one count of grand larceny in the second degree (§ 155.40 [1]). Defendant is convictedof failing to report on 12 recertification applications to the Genesee County Department of SocialServices (DSS) for child care, food stamp and Medicaid benefits that the father of one of herchildren was residing in her household. We agree with defendant that the evidence is legallyinsufficient to support the conviction of grand larceny and 11 of the counts charging offering afalse instrument for filing, and we therefore dismiss counts 1 through 12 of the indictment.
We first address the 11 counts charging defendant with offering a false instrument for filingin the first degree. It is undisputed that Jeffrey Banks, the father of defendant's youngest child,frequently spent the night at defendant's residence and that defendant did not list him as a personwho lived there on her recertification applications to DSS. It is also undisputed that prior to andsubsequent to the time period in question, defendant lived at other addresses, and she listedBanks as a person who lived with her at those addresses. We conclude, however, that the Peoplefailed to establish that Banks "was living in [defendant's] household within the commonlyunderstood meaning of that phrase" during the time period in question here (People vStumbrice, 194 AD2d 931, 933 [1993], lv denied 82 NY2d 727 [1993]). Twoprosecution witnesses who were frequent visitors at defendant's residence, including one whostayed at defendant's residence for a few months, testified that Banks lived at defendant'sresidence, and defendant's landlord testified that he believed that Banks lived at the residence.The basis for the testimony of those prosecution witnesses, however, was only that they oftenobserved Banks at defendant's residence. The People failed to present other evidence to supportthe conclusion of those [*2]witnesses that Banks lived atdefendant's residence, e.g., evidence that Banks received his mail at the residence, performedhousehold chores, or paid household bills (cf. People v Hure, 16 AD3d 774, 775 [2005], lv denied 4NY3d 854 [2005]; Stumbrice, 194 AD2d at 933).
According to the testimony of defendant, although Banks was often at her residence andslept there 2 to 3 nights per week, he did not live there and spent the remainder of the time atanother woman's home or at the homes of his family members. Three other defense witnesseswho were often at defendant's residence testified that Banks was frequently at the residence butthat they did not observe any of his personal effects there, nor did they have any knowledge thathe lived there. A fourth defense witness testified that she rarely saw Banks at defendant'sresidence and had no knowledge that he lived with defendant. Neither the People nor defendantcalled Banks as a witness. Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude with respect to counts 2through 12 of the indictment that the evidence is legally insufficient to establish that Banks livedwith defendant and her children and thus that defendant knowingly filed a written instrumentcontaining a false statement with the intent to defraud DSS (see Penal Law §175.35; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We further conclude that the evidence is legally insufficient to establish that defendantcommitted grand larceny in the second degree by stealing DSS benefits in excess of $50,000(see generally Bleakley, 69 NY2d at 495). The People failed to establish that defendantreceived benefits to which she would not have been entitled had Banks been living with her andthat the value of those benefits exceeded $50,000 (see People v Hunter, 34 NY2d 432,438-439 [1974]; cf. People v Martinez, 202 AD2d 735, 737 [1994]; Stumbrice,194 AD2d at 934). "The extent of the undeserved benefits is especially important here where theconviction is for grand larceny in the [second] degree, which requires proof that the specificvalue of the property wrongfully obtained is in excess of [$50,000]" (Hunter, 34 NY2d at439). Indeed, DSS employees testified that the presence of Banks in the residence may not haveimpacted defendant's eligibility to receive benefits.
We reject defendant's contention that the evidence is legally insufficient to support theconviction of count 13 of the indictment, which concerns the final recertification application.The People established that defendant and Banks both signed a rental agreement for a newresidence approximately two weeks before defendant applied for that recertification of benefitsand that defendant did not include Banks as a member of her household on that application. Wenevertheless grant a new trial on that count inasmuch as County Court abused its discretion indenying defendant's request for a brief continuance to present a witness who, according todefendant, would testify that Banks spent 2 to 3 nights per week at the residence of that witnessduring the time period that defendant claimed that Banks did not live in her household (see People v Walker, 28 AD3d1116, 1116-1117 [2006], mem and order amended upon rearg 31 AD3d 1226[2006]). By denying the request by defendant for a continuance, the court not only deprived herof "the fundamental right to present [a] witness[ ] in [her] defense, but . . .effectively deprive[d her] of the defense itself and cast doubt upon [her] credibility" (Peoplev Foy, 32 NY2d 473, 478 [1973]). We have reviewed defendant's remaining contentions andconclude that they are without merit. Present—Smith, J.P., Centra, Peradotto and Gorski,JJ.