| People v Haskell |
| 2009 NY Slip Op 09323 [68 AD3d 1358] |
| December 17, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John M.Haskell, Appellant. |
—[*1] Kevin C. Kortright, Washington County District Attorney, Special Prosecutor, Fort Edward(Katherine G. Henley of counsel), for respondent.
Stein, J. Appeal from a judgment of the County Court of Warren County (Scarano, J.),rendered January 2, 2009, upon a verdict convicting defendant of the crime of defrauding thegovernment.
By deed dated December 1, 2005, Dan Neilson conveyed to defendant a landlocked piece ofproperty with a disputed right-of-way for $20,000. Defendant, who was both Town Supervisorfor the Town of Thurman, Warren County and the owner of a logging company, then sought toacquire a right-of-way over adjacent Town property in order to obtain access to his property. Toaccomplish this, the People allege that defendant first improperly[FN*]procured the conveyance of a right-of-way to another citizen at the November 2005 Town Boardmeeting and then used that conveyance as a foundation to acquire his own right-of-way at theDecember 2005 Town Board meeting. It is undisputed that, immediately prior to the Decembermeeting, defendant met privately with Town Board members to advise them that he intended tomake a proposal at the impending public meeting that he be granted a right-of-way. Whendefendant appeared before the Town Board at the public meeting, he instead requested only autility [*2]easement appurtenant to a right-of-way which herepeatedly indicated he already owned. Following the Town Board's approval of the conveyanceof a utility easement, defendant successfully sought to have the December Town Board meetingminutes amended to reflect that he had been granted a right-of-way. Defendant then obtained andfiled a deed conveying the right-of-way and subsequently used the right-of-way to log theproperty. Defendant was charged in a two-count indictment and, following a jury trial, was foundguilty of defrauding the government and acquitted of official misconduct. Defendant nowappeals.
We affirm. Defendant argues that his conviction was based on legally insufficient evidenceand was against the weight of the evidence. In reviewing the legal sufficiency of the evidence,we view the evidence in the light most favorable to the People (see People v Harper, 75NY2d 313, 316-317 [1990]) and "determine whether there is any valid line of reasoning andpermissible inferences which could lead a rational person to the conclusion reached by the jury"(People v Bleakley, 69 NY2d 490, 495 [1987]). On the other hand, in determiningwhether a conviction is against the weight of the evidence, we view the evidence in a neutrallight and, if a different finding would not have been unreasonable, we " 'weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony' " (id. at 495, quoting People ex rel. MacCracken vMiller, 291 NY 55, 62 [1943]; seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633, 636 [2006]; People v Khuong Dinh Pham, 31AD3d 962, 964 [2006]), giving "appropriate deference to the jury's superior opportunity toassess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151, 1152-1153 [2007], lvdenied 8 NY3d 946 [2007]; seePeople v Griffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d 756 [2006]).
As relevant here, in order to convict defendant of the crime of defrauding the government,the People were required to prove the existence of "a scheme constituting a systematic ongoingcourse of conduct with intent . . . to obtain property from the [Town by]. . . fraudulent pretenses, representations or promises," as a result of whichdefendant obtained property from the Town having a value in excess of $1,000 (Penal Law§ 195.20). Defendant's claim that the People failed to prove a "systematic ongoing courseof conduct"—either because proof of fraud against the public, generally, is insufficientand there was no evidence of the existence of a scheme to defraud any particular governmentofficials or because there was no evidence of multiple acts on his part in furtherance of anyscheme—is unavailing. The aim of Penal Law § 195.20 is to punish those who seekto gain a benefit at the expense of the government or its citizenry (see Governor's Mem,1986 NY Legis Ann, at 342; People v Tansey, 156 Misc 2d 233, 245 [1992]). Moreover,a single scheme to defraud may contain several "actors, modalities and victims" and can becharacterized as "a continuing offense committed over time" (People v First MeridianPlanning Corp., 86 NY2d 608, 616 [1995]). "[T]he details of the separate transactionsalleged to comprise parts of the scheme do not have to be identical in every respect, as long asthe fact finder is satisfied that there are, among all the transactions, common elements by whicheach transaction may be identified as having been undertaken pursuant to an over-all fraudulentdesign" (People v Kaminsky, 127 Misc 2d 497, 502 [1985]; see People v Ford,88 AD2d 859, 862 [1982]).
Here, the People presented ample evidence from which the jury could find that defendantengaged in a systematic ongoing course of conduct with the intent to obtain a right-of-way fromthe Town by fraudulent pretenses or representations. Such evidence included proof ofdefendant's position as Town Supervisor and as the owner of a logging company. In addition,defendant, himself, testified regarding his insistence that the sale of the property from Neilson[*3]close by the end of the year (leading to the inference that hewanted to ensure that he obtained the right-of-way prior to the January 2006 installation of newTown Board members, at least one of whom was a political adversary of defendant). Theevidence also established a series of actions on defendant's part even more directly related to theconveyance of the right-of-way, such as his actions at the November 2005 Town Board meetingby which he improperly procured a right-of-way over Town property for another member of thepublic, the private unrecorded meeting with members of the Town Board wherein he discussedhis plans to request a right-of-way over Town property, followed by his false and misleadingstatements at the public Town Board meeting, defendant's uncommon procedure for requesting aright-of-way, his request to change the minutes of the Town Board meeting, and his filing of adeed with the Warren County Clerk that was not in conformity with what the Town Board hadapproved. Viewed in a light most favorable to the People, such evidence was also sufficient toestablish a causal connection between defendant's fraudulent conduct and his obtaining theright-of-way. Nor were the jury's findings relative to these issues against the weight of theevidence.
We next turn to defendant's argument that the proof was legally insufficient to establish thathe actually obtained the right-of-way. In this regard, we note that defendant failed to preserve hisclaim (see People v Gray, 86 NY2d 10, 20-21 [1995]), raised for the first time on thisappeal, that the conveyance was void ab initio because it was made without adequateconsideration and was, therefore, an unconstitutional gift of public property (see NYConst, art VIII, § 1). However, were we to consider this claim, we would find it to bewithout merit.
On the other hand, contrary to the People's contention, defendant did preserve his claim thatthe conveyance was void as a result of the Town's failure to follow the proper procedures fortransfer of Town property in accordance with Town Law § 64. Nevertheless, we also findthis contention to be unavailing. Even if we were to conclude that the conveyance of theright-of-way failed to comply with the applicable procedural requirements, such failure would, atmost, render the conveyance voidable (see generally Cameron Estates, Inc. v Deering,308 NY 24, 30 [1954]; 2609 Bailey v City of Buffalo, 161 Misc 2d 419, 421 [1994],affd 227 AD2d 959 [1996]). Inasmuch as there is no record evidence of any action takento rescind the transaction, we conclude that there was legally sufficient evidence to establish thatdefendant obtained the right-of-way.
We also conclude that the evidence was legally sufficient to establish that the value of theright-of-way exceeded $1,000 and that such finding was not against the weight of the evidence.While the People did not call an expert witness regarding the value of the right-of-way, "it isonly necessary that the jury have a reasonable basis for inferring, rather than speculating, that thevalue of the property exceeded the statutory threshold" (People v Sheehy, 274 AD2d844, 845 [2000], lv denied 95 NY2d 938 [2000]). Here, Neilson testified that a potentialbuyer had initially offered him $27,500 for the property but, upon ascertaining that aright-of-way could not be obtained, the buyer did not proceed with the purchase and defendantsubsequently purchased the property—knowing that there was no land access toit—for $20,000. Neilson also testified that he received a settlement of $7,000 from his titleinsurance company based upon the inability to secure a right-of-way for the parcel. Based on thisevidence, it was reasonable to infer that the market value of the right-of-way was well in excessof $1,000.
Cardona, P.J., Peters, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The Town Clerk of 26 yearstestified that defendant's motion for acceptance of a conveyance without a prewritten draftresolution was "not a common practice."