| People v Monteiro |
| 2012 NY Slip Op 01527 [93 AD3d 898] |
| March 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ana PaulaMonteiro, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Mercure, A.P.J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered May 13, 2010, upon a verdict convicting defendant of the crimes of falsifying businessrecords in the first degree (nine counts), criminal possession of a forged instrument in the seconddegree (three counts), scheme to defraud in the first degree, failure to file an income tax return(two counts) and filing a false and fraudulent tax return (two counts).
Following an investigation, codefendant Aaron Dare and defendant, his fiancÉe, werecharged in a 59-count indictment with offenses stemming from their involvement in a mortgagefraud scheme. Dare, who operated various business entities that prepared loan applications forindividuals interested in purchasing real property and subsequently handled the closings, wasindisputably the mastermind of the scheme. Defendant, however, worked as a loan officer forthose businesses and was charged as an accessory (see Penal Law § 20.00). WithDare's control over the process, numerous opportunities existed to alter paperwork and misdirectfunds, and two primary methods were employed to do so. The first involved a "show check"drawn by the buyer using funds provided to that buyer by one of defendant's real estatecompanies. The show check would be used to demonstrate to lenders that the buyer had thepurported wherewithal to make a down payment and, thereafter, the buyer would return the fundsto Dare. The second method was to submit inaccurate documents to the lender that inflated thepurchase price of the property and, in turn, justified a higher loan amount. In either case, aportion of the loan proceeds were then [*2]funneled intodefendant's personal accounts to fund her and Dare's lavish lifestyle.
Dare pleaded guilty to various counts in satisfaction of the indictment and is currentlyserving a lengthy prison sentence, imposed as a result of this matter and other federal and stateconvictions arising out of his fraudulent conduct. Following a jury trial, defendant was convictedof nine counts of falsifying business records in the first degree, three counts of criminalpossession of a forged instrument in the second degree, one count of scheme to defraud in thefirst degree, and two counts each of failure to file an income tax return and filing a false andfraudulent tax return. County Court sentenced defendant to an aggregate prison term of 6 to 20years, and she now appeals.
We affirm. Defendant concedes that the People demonstrated that Dare had committed thealleged mortgage fraud, but argues that the evidence is legally insufficient to sustain herconvictions and that the weight of the evidence does not support the jury's finding that she aidedDare in committing those offenses with the "intent to defraud" anyone (Penal Law§§ 170.25, 175.10, 190.65 [1]; see § 20.00).[FN*]Fraudulent intent, however, "is usually not susceptible of proof by direct evidence and mustordinarily be inferred from circumstantial evidence such as the defendant's knowledge of themisleading or deceptive nature of the particular business practices employed" (People vSala, 258 AD2d 182, 188-189 [1999], affd 95 NY2d 254 [2000]; see People v DeDeo, 59 AD3d846, 850-851 [2009], lv denied 12 NY3d 782 [2009]).
Defendant was aware that Dare was under investigation—and was ultimatelyconvicted—for his role in fraudulent real estate transactions, including those that involvedshow checks and the misrepresentation of buyer incomes and property values. Widespread fraudcontinued to infect Dare's real estate transactions during the period that defendant worked withhim, and he testified that the fraud was easy to see for anyone familiar with the real estateindustry. While defendant downplayed her real estate experience, she had worked for severalmortgage companies, and there was testimony that she handled the paperwork in processing theloans. Moreover, she worked very closely with Dare, opened bank accounts at his behest and,despite knowing that he continued to use show checks, allowed him to deposit monies derivedfrom the transactions into those accounts and benefitted from them. The jury could readily inferfrom this evidence and the documentation of her involvement with specified transactions "thatdefendant[ ] had aided and abetted in the commission of the [mortgage] scheme by participatingin it with the criminal intent necessary to commit the crime[s]" (People v Jones, 104AD2d 330, 331 [1984]; see People v Korsen, 167 AD2d 180, 181 [1990], lvdenied 77 NY2d 962 [1991]; People v Ford, 88 AD2d 859, 862 [1982]).Furthermore, in light of the foregoing, her convictions for scheme to defraud, falsifying businessrecords and criminal possession of a forged instrument are supported by the weight of theevidence.
Finally, given the scope of defendant's fraudulent conduct and the serious impact [*3]wrought upon the victims, we cannot say that the sentence imposedwas harsh or excessive (see People v DeDeo, 59 AD3d at 851). Defendant's remainingarguments have been examined and found to be without merit.
Spain, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant additionallychallenges the legal sufficiency of the evidence with respect to the tax charges. Although sheconcedes that this challenge is unpreserved, we nevertheless consider the sufficiency of the proofin conducting our weight of the evidence review (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Brown, 90 AD3d 1140,1140 n [2011]).