| People v Rose |
| 2009 NY Slip Op 04304 [63 AD3d 1184] |
| June 4, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Annette Rose,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Kavanagh, J.), rendered June7, 2006 in Ulster County, upon a verdict convicting defendant of the crimes of falsifyingbusiness records in the first degree and official misconduct (two counts).
After a $1,158 discrepancy was discovered in the bank deposit records for the Town Clerk ofthe Town of Rochester, Ulster County, defendant, at that time a Deputy Town Clerk, wasarrested and charged with grand larceny in the fourth degree, falsifying business records in thefirst degree and two counts of official misconduct. Following a jury trial, defendant wasconvicted on the falsifying business records and the official misconduct charges. Defendantthereafter moved to set aside the verdict as inherently inconsistent and against the weight of theevidence. Supreme Court denied the motion and sentenced defendant to an aggregate probationterm of one year and 100 hours of community service and imposed a $1,150 fine. Defendant nowappeals.
Initially, as the People acknowledge, although Supreme Court properly indicated to the jurythat defendant was charged with falsifying business records in the first degree, it mistakenlycharged the jury on the law as it pertains to offering a false instrument for filing in the firstdegree. Despite defendant's failure to object to this fundamental error at trial, inasmuch as it[*2]cannot be determined if the jury found defendant guilty of thecrime with which she was charged, the conviction on that count must be reversed as a matter ofdiscretion in the interest of justice and a new trial ordered thereon (see People v Steiner,117 AD2d 692, 692 [1986], lv denied 67 NY2d 951 [1986]; People vCrutchfield, 111 AD2d 346, 346 [1985], lv denied 66 NY2d 762 [1985]; Peoplev Melendez, 96 AD2d 517 [1983]).
As for the remaining charges, to the extent that defendant argues that the verdicts finding herguilty of official misconduct (see Penal Law § 195.00 [1], [2]) are not supportedby legally sufficient evidence, such argument was not preserved by the appropriate objection attrial (see People v Golden, 37AD3d 972, 973 [2007], lv denied 9 NY3d 844 [2007]). Nor are we persuaded thatthese verdicts are against the weight of the evidence. The trial testimony established thatdefendant was a public servant responsible for collecting money paid to the Town for transferstation tickets, entering that information into the Town's database and preparing daily bankdeposits. The $1,158 discrepancy was linked to transactions made on July 1, 2003, a day onwhich defendant signed a receipt acknowledging that she received $1,200 in cash from the TownSupervisor for the sale of transfer station tickets by a local hardware store. Defendant preparedthe documentation for a deposit, but the Town's bank records reflected that no cash wasdeposited on that day; rather, several small checks totaling $1,200 were deposited instead. Anexpert testified that the manner of the deposit was consistent with a cash substitution fraudscheme. Considering this evidence in a neutral light (see People v Young, 51 AD3d 1055, 1056 [2008], lvdenied 11 NY3d 796 [2008]), and deferring to the jury's assessment of the credibility of thewitnesses (see People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that theseverdicts are not against the weight of the evidence.
Finally, defendant's claim that the jury's verdicts are repugnant was not properly preservedfor review (see People v Stahl, 53 NY2d 1048, 1050 [1981]).
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is modified, asa matter of discretion in the interest of justice, by reversing defendant's conviction of falsifyingbusiness records in the first degree under count two of the indictment; matter remitted to theSupreme Court for a new trial on said count; and, as so modified, affirmed.