| People v Abraham |
| 2012 NY Slip Op 03235 [94 AD3d 1332] |
| April 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Akiva DanielAbraham, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered October15, 2010 in Albany County, upon a verdict convicting defendant of the crime of insurance fraudin the second degree.
In April 2009, a fire destroyed an abandoned nightclub, which was known as SaratogaWinners, and had recently been acquired by a limited liability company—1st Call,LLC—that defendant owned. Defendant claimed that he did not know the cause of the firewhen notifying his insurance company of the loss. After evidence was uncovered suggesting thatdefendant had intentionally set the blaze, he was charged in an indictment with arson in the thirddegree, insurance fraud in the second degree and reckless endangerment in the first degree.Defendant's first trial ended in a hung jury, but he was convicted of insurance fraud in the seconddegree after a second trial. Supreme Court sentenced defendant to a prison term of 4 to 12 years,and he now appeals.
Defendant initially contends that the evidence was not legally sufficient for the jury todetermine that he knowingly submitted a false, written statement to his insurer concealing amaterial fact—i.e., that the fire was intentionally set (see Penal Law §176.05 [1]; § 176.25; People v Chase, 299 AD2d 597, 599 [2002], lvdenied 99 NY2d 613 [2003]). The record reveals that defendant acquired the property shortlybefore the fire and had taken out a large insurance [*2]policy onit, the value of which was based upon a $475,000 mortgage granted to a separate limited liabilitycompany, Parel Road, LLC, which was controlled by defendant and his father. That company hadnot actually provided any funds to purchase the parcel, however, and had roughly $25 in itschecking account at the time. Thus, the fire raised the potential for a substantial cash payout todefendant, and he told one of his employees that "it could be big for us." Although defendantdenied knowing the cause of the fire, he stated to investigators that he could think of no naturalexplanation and could not recall whether he had locked the building. Investigators further learnedthat defendant had purchased substantial quantities of an accelerant found at the crime scene,empty containers of which were subsequently recovered from his home.
In our view, the jury could have rationally concluded from this evidence that defendantcommitted insurance fraud by concealing the cause of the fire (see People v Chase, 299AD2d at 599). We reject defendant's argument that his acquittal on the arson count renders theguilty verdict of insurance fraud repugnant. He does not dispute that such an outcome haspreviously been upheld (see People vPagan, 87 AD3d 1181, 1182-1183 [2011], lv denied 18 NY3d 885 [2012];People v Michael, 210 AD2d 874, 874 [1994], lv denied 84 NY2d 1035 [1995]),but maintains that the verdict is repugnant here given the People's reliance upon the theory thathe acted alone in starting the fire. Insurance fraud, however, requires only a showing "thatdefendant intentionally concealed the cause of the fire on [his] insurance claim," not thathe was personally responsible for starting the blaze (People v Pagan, 87 AD3d at 1183;see People v Michael, 210 AD2d at 874). Supreme Court's jury charge reflected thisdistinction, and a "repugnancy analysis requires that we review the elements of the offenses ascharged to the jury without regard to the proof that was actually presented at trial" (People v Muhammad, 17 NY3d532, 542 [2011]). Inasmuch as "there is a possible theory under which a split verdict couldbe legally permissible, it cannot be repugnant" (id. at 540; see People v Spralling, 91 AD3d510, 511 [2012]).
Finally, the People's reference during summation to evidence regarding the mortgage on theproperty did not constitute an improper attempt to introduce a new theory of liability on theinsurance fraud count, as defendant asserts. That evidence was mentioned in both openingstatements and explored at length during the trial. Contrary to defendant's assertions, the Peopledid not argue that the charged insurance fraud arose directly from the mortgage, but instead reliedupon the evidence to place the mortgage in the larger context of an alleged arson-for-profitscheme. Inasmuch as defendant was provided with fair notice of the accusations against him, andthe People's comments in summation were fully consistent with the indictment, reversal is notrequired (see People v Grega, 72 NY2d 489, 496 [1988]). Moreover, the prosecutor wasfree to refer to the evidence regarding the mortgage and "the inferences to be drawn therefrom,"and his references to the mortgage as "bogus" or "a fraud" in his opening statement andsummation did not constitute misconduct (People v Bailey, 58 NY2d 272, 277 [1983];see People v Racine, 132 AD2d 899, 900 [1987], lv denied 70 NY2d 754[1987]).
Lahtinen, Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the Supreme Court for further proceedings pursuant to CPL 460.50 (5).