| People v Arbas |
| 2011 NY Slip Op 04779 [85 AD3d 1320] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Matthew M.Arbas, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown, for respondent.
Malone Jr., J. Appeal from a judgment of the County Court of Otsego County (Lambert, J.),rendered April 5, 2010, upon a verdict convicting defendant of the crime of forgery in the seconddegree (three counts).
Defendant and his father were the joint owners and operators of a farm business in OtsegoCounty. According to defendant, in 2002 or 2003, the two men had a dispute about managing thefarm, after which defendant's father left the business and he last saw his father sometime in 2004.In May 2005, defendant was questioned by the State Police regarding certain bankingtransactions that defendant allegedly made in his father's name. While defendant admitted that hehad closed out some of his father's personal accounts and had signed his father's name on variouscommercial instruments, he claimed to have done so with his father's permission. He furtheradmitted that he had disguised himself as his father and transferred funds between two of hisfather's personal accounts.
In August 2009, defendant was charged by indictment with grand larceny in the seconddegree, scheme to defraud in the first degree and six counts of forgery in the second degree.Defendant moved to, among other things, dismiss the indictment, alleging that the grand juryproceedings were defective. County Court denied the motions, but subsequently dismissed onecount of forgery in the second degree prior to trial. At trial, defendant admitted to signing his[*2]father's name on various documents, but maintained that, inthe course of business, he and his father had regularly signed each other's signatures. The juryultimately convicted defendant of three counts of forgery in the second degree and acquitted himof the other charges. Defendant unsuccessfully moved to set aside the verdict and was thereaftersentenced to an aggregate prison term of 6 to 18 years. Defendant appeals.
Initially, we are not persuaded that the integrity of the grand jury proceeding was sufficientlyimpaired to warrant dismissal of the indictment. Such drastic relief is available when "'prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimatedecision reached by the [g]rand [j]ury' " (People v Serkiz, 17 AD3d 28, 30 [2005], quoting People vHuston, 88 NY2d 400, 409 [1996]). Here, while some inadmissible hearsay evidence waselicited by the prosecutor from three witnesses, the proceeding otherwise substantially conformedwith the requirements of CPL article 190. In addition, legally sufficient independent proofexisted to support the indictment and, thus, defendant was not prejudiced by the hearsaytestimony (see People v Huston, 88 NY2d at 409; People v Miles, 76 AD3d 645 [2010]). Nor are we persuaded thatthe integrity of the proceeding was substantially impaired by the testimony elicited by theprosecutor regarding the disappearance of defendant's father. The prosecutor adequatelyinstructed the grand jurors that such testimony was permitted only to provide background as towhy defendant had been investigated by the police and repeatedly warned them that, during theirdeliberations, they were not permitted to consider the fact that the father was missing.
Next, we do not agree with defendant that County Court erred by denying his motion todisqualify the District Attorney's office for a conflict of interest based upon an Assistant DistrictAttorney's representation of him in a prior civil lawsuit he had brought against his father. Theremoval of a prosecutor is appropriate "to protect a defendant from actual prejudice arising froma demonstrated conflict of interest or a substantial risk of an abuse of confidence" (Matter ofSchumer v Holtzman, 60 NY2d 46, 55 [1983]), but the defendant must establish more than amere appearance of impropriety (seePeople v Gigliuto, 22 AD3d 890, 892 [2005], lv denied 7 NY3d 789 [2006]).Here, the Assistant District Attorney who had previously represented defendant had minimalinvolvement in only the early stages of defendant's prosecution and none of the informationelicited at trial about the prior lawsuit indicated that any abuse of confidence or use of privilegedinformation had occurred (see People vAbrams, 73 AD3d 1225, 1227 [2010], affd 17 NY3d 760 [2011]).
We are not persuaded that the convictions of three counts of forgery in the second degree areinherently inconsistent with the acquittals of grand larceny in the second degree, scheme todefraud in the first degree and two counts of forgery in the second degree. Reviewing theevidence at trial and the elements of the crimes as charged by County Court, the jury could havefound defendant guilty of forgery, but not guilty of grand larceny in the second degree if it foundthat the total value of the money defendant wrongfully appropriated to himself through forgerywas less than $50,000 (see Penal Law § 155.05 [1]). Scheme to defraud in the firstdegree, as charged to the jury, requires "a systematic ongoing course of conduct" (Penal Law§ 190.65 [1] [b]) and the jury could have concluded that the incidents of forgery for whichdefendant was convicted were three isolated incidents rather than one " 'continuing offensecommitted over time' " (People vHaskell, 68 AD3d 1358, 1360 [2009], quoting People v First Meridian PlanningCorp., 86 NY2d 608, 616 [1995]). The fact that defendant was convicted of some, but notall, of the forgery counts does not necessarily render the verdict inconsistent because theincidents were alleged to have occurred in separate transactions (see People v [*3]Torrence, 305 AD2d 1042, 1044 [2003], lv denied 100NY2d 625 [2003]; People v Dantzler, 209 AD2d 429, 430 [1994], lv denied 85NY2d 908 [1995]). Moreover, contrary to defendant's assertions, it is possible that the juryconcluded that defendant had permission to sign his father's name on the documents related tothe sale of farm equipment but not on documents related to his father's personal finances. Indeed,as to the counts related to the sale of farm equipment, the testimony of the purchaser indicatedthat defendant openly signed his father's name and did not appear to be concerned about anywrongdoing. Yet, when defendant signed his father's name on personal banking forms, hepurposefully impersonated his father by donning a disguise and, on a timber sale contract,defendant used a fake notary stamp to notarize his father's forged signature. The jury could havedetermined that defendant's conduct in those incidents evinced an intent to defraud ordeceive—and indicated that defendant himself did not believe that he was authorized tosign his father's name on those documents—that the sale of the farm equipment did not.Moreover, to the extent that defendant argues such, we are not persuaded that the convictions areagainst the weight of the evidence.
Finally, as to defendant's claim that the sentence imposed is harsh and excessive, defendanthas not demonstrated that County Court abused its discretion or that extraordinary circumstancesexist, so we find no basis upon which to disturb the sentence. Defendant's remaining contentionregarding County Court's response to a note from the jury was not preserved for our review (see People v Jones, 52 AD3d1252, 1252 [2008], lv denied 11 NY3d 738 [2008]).
Mercure, J.P., Peters, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.