| People v Villacorta |
| 2010 NY Slip Op 06701 [76 AD3d 911] |
| September 28, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Cecille Villacorta, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 6, 2009,convicting defendant, after a jury trial, of grand larceny in the third degree and 144 counts offalsifying business records in the first degree, and sentencing her to concurrent terms of 90 days,with five years' probation, a fine and community service, unanimously affirmed. The matter isremitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). On thecontrary, we find the evidence to be overwhelming. There was ample proof that defendant wasnot authorized to manipulate sales records, such as by recording fictional transactions, so as tobenefit herself at her employer's expense. Furthermore, her pattern of behavior demonstrated herfraudulent intent and awareness that her actions were unauthorized.
The court properly exercised its discretion in restricting, to matters relevant to the charges,defendant's discovery of her employer's computerized records (see People vGissendanner, 48 NY2d 543, 547-551 [1979]). Defendant's subpoena duces tecum wasoverbroad. Although afforded an opportunity to make more targeted discovery requests, shefailed to do so. Instead she requested an impermissibly open-ended fishing expedition into thecompany's records based on speculation that relevant information might be found. Defendantreceived extensive discovery as to relevant matters, and there is no reason to believe she wasdeprived of any exculpatory or impeaching evidence.
The record does not support defendant's claim that a defense witness was intimidated by thecourt and the prosecutor into declining to testify. The court simply, and correctly, advised thewitness that if she admitted having engaged in the same kind of transactions that led to thecharges against defendant, and if those transactions were not authorized by the employer, shecould be prosecuted as well (see People v Lee, 58 NY2d 773 [1982]). The Peopleproperly refused to immunize the witness (see People v Adams, 53 NY2d 241, 247[1981]), and the court properly assigned her an attorney. On advice of counsel, the witnessindicated she would invoke her Fifth Amendment privilege as to potentially incriminatingmatters, and defendant chose not to call her. We do not find any evidence of intimidation(compare People v Shapiro, 50 NY2d [*2]747, 761-762[1980]).
We have considered and rejected defendant's challenges to the court's evidentiary rulings andthe prosecutor's summation. Defendant's repugnant verdict claim is unpreserved and we declineto review it in the interest of justice. As an alternative holding, we also reject it on the merits.Concur—Gonzalez, P.J., Andrias, Acosta, Renwick and Abdus-Salaam, JJ.