| People v Carter |
| 2012 NY Slip Op 05703 [97 AD3d 492] |
| July 24, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Nicole Carter, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered July 1, 2010,convicting defendant, after a jury trial, of welfare fraud in the third degree, grand larceny in thethird degree, and offering a false instrument for filing in the first degree, and sentencing her, as asecond felony offender, to an aggregate term of 2 to 4 years, unanimously reversed, on the law,and the matter remanded for a new trial.
The People allege defendant misrepresented her employment status and income when sheapplied to the New York City Human Resources Administration (HRA) for food stamp benefits,temporary assistance, and medical assistance, indicating on the application that she wasunemployed and had no income or resources. The theory of the prosecution was that defendantworked for the United States Postal Service (USPS), and had lied about her income andemployment status so she could receive benefits she otherwise would not be entitled to receive.Although the prosecution established that a person named Nicole Carter improperly obtainedpublic assistance benefits, the critical question is whether a circumstantial evidence chargeshould have been given.
The People introduced time sheets and pay stubs from the USPS for Nicole Carter, as well asan application for welfare benefits that had been completed and recertified by Nicole Carter.Three witnesses testified for the People—a USPS special agent, and two investigatorsfrom the fraud department at HRA. The USPS special agent testified that based on his review ofthe pay stubs and time sheets for August 21, 2006 through the spring of 2009, Nicole Carter wasemployed full time, with intermittent periods of approved leave. The special agent also testifiedthat from the end of 2006 until October of 2007, Nicole Carter earned a gross biweekly incomeranging from $1,234.13 to $2,725.76.
Through the testimony of the two HRA fraud investigators, the People showed that anindividual with the same name, birth date, and Social Security number as the USPS employeecompleted an application for benefits on April 26, 2006. The application recorded that NicoleCarter was unemployed, had no income of any kind, and no "resources." The application alsoreflected that Nicole Carter could not accept a job at that time due to illness or injury. The firstHRA investigator explained that benefits applications need to be periodically recertified to reflect[*2]any changes in status, which in turn, could affect the amountof benefits the applicant receives. The initial application is usually completed by hand, and thenentered into the computer system by an HRA employee, whereas the recertifications arecompleted and signed electronically. The applicant is not required to fill out a new form at thetime of recertification; rather, the applicant typically will meet with an HRA employee, answer aseries of questions, and the HRA employee will enter the recertification information into thecomputer.
The People introduced two recertifications bearing the same identifying information as theinitial application and the USPS pay stubs and time sheets. The first recertification took place onAugust 7, 2006 and the second recertification was completed on May 15, 2007. Bothrecertifications reflected that Nicole Carter was unemployed at the time. The HRA investigatorwho testified regarding the application and recertification process had no knowledge of whetherNicole Carter was actually present to recertify her application. However, during the time thebenefits were received, based on the USPS special agent's testimony, the USPS employeeidentified as Nicole Carter was working full time, and, based on the HRA investigator'stestimony, earning an income that did not qualify her to receive benefits. The second HRA fraudinvestigator explained that the HRA fraud division sent a letter to Nicole Carter, requesting thatshe come in for an interview, and the investigator identified defendant as the person who came tothe office for the interview. Defendant did not call any witnesses or testify on her own behalf.
At the charging conference defendant requested the jury be given the circumstantial evidencecharge; however, the trial court declined to give the requested charge. Although we find that theevidence at trial was legally sufficient (see People v Bleakley, 69 NY2d 490 [1987]) andthe verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]), we neverthelessreverse because the trial court should have given a circumstantial evidence charge.
"Whenever a case relies wholly on circumstantial evidence to establish all elements of thecharge, the jury should be instructed, in substance, that the evidence must establish guilt to amoral certainty" (People v Daddona, 81 NY2d 990, 992 [1993]). The purpose of thecharge is to foreclose the danger that "the trier of facts may leap logical gaps in the proof offeredand draw unwarranted conclusions based on probabilities of low degree" (People v Ford,66 NY2d 428, 442 [1985]), because "[w]hen a case rests entirely upon circumstantial evidence,the finder of fact is required to perform a complex analytical function" (People v Barnes,50 NY2d 375, 380 [1980]). Indeed, the finder of fact is required to piece together a puzzle beforeit can even arrive at its determination, and thus, by telling the jury that "the facts perceived as awhole must exclude to a moral certainty every conclusion other than guilt," the law alerts thefactfinder to the "rigorous function which must be undertaken" (People v Barnes, 50NY2d at 380 [internal quotation marks omitted]).
Here, the trial court should have given the charge because the People's case rested wholly oncircumstantial evidence (see People v Daddona, 81 NY2d at 992). Although defendant'sname was identical to that of the person who received the welfare benefits, no one identifieddefendant as the individual who completed the HRA forms, or as the individual who worked forthe USPS. The HRA investigator's testimony identifying defendant as the person who appeared atthe fraud office was not direct evidence relating to defendant's complicity in the crimes chargedbecause an inference still needed to be drawn that the person who responded to the letter was thesame person who falsely applied for benefits (see People v Lynch, 309 AD2d 878, 878[2003], lv denied 2 NY3d 742 [2004] [circumstantial evidence charge should have beengiven where there was "no direct evidence establishing the identity of the burglar" and theevidence of [*3]defendant's guilt was wholly circumstantial]).Further, although the investigator stated that defendant showed her photo identification beforetheir meeting, no copy of this identification was introduced, nor could the investigator offer anydetails. In addition, no testimony was offered to establish that any of the identifying informationon this photo identification matched the information in HRA's system or the information on theUSPS pay stubs. Indeed, this testimony did nothing to connect defendant with the person whocommitted the crimes, except by way of a chain of speculative inferences.
Nor were the remaining documents the People submitted direct evidence which eliminatedthe necessity of a circumstantial evidence charge. The People put forth documents showing thatsomeone named Nicole Carter worked for the USPS and that an individual with the same name,birth date, and Social Security number listed on the USPS pay stubs applied for welfare benefits.Those documents do not constitute direct evidence that defendant was indeed the Nicole Carterlisted as a USPS employee, or that defendant was the individual who completed the HRAapplication. Indeed, the People made no effort to introduce specific evidence that defendantshared any of the pedigree characteristics with the person who improperly obtained governmentbenefits. We do not even know what information, such as defendant's birth date or address, wasgiven to the police as part of the routine arrest process in this case. Nor did the People seek tointroduce tax records or other government documents that would have contained defendant'sbirth date, Social Security number, or address. Further, although the first HRA investigatortestified that the application and recertifications were signed by Nicole Carter, the prosecutiondid not introduce any expert handwriting testimony or any handwriting exemplars connectingdefendant to the signatures on the forms.
Contrary to the People's argument, this case is not one where "both direct and circumstantialevidence are employed to demonstrate a defendant's culpability" thereby negating the need forthe charge (People v Barnes, 50 NY2d 375, 380 [1980]; see also People vRoldan, 88 NY2d 826 [1996]). In cases where the charge was not necessary, there was directevidence, in the form of eyewitness testimony identifying the defendant as the perpetrator of thecrime, or an admission of guilt by the defendant (see Barnes, 50 NY2d at 378 [threepolice officers testified, identifying the defendant as the individual hiding in the store, which hada broken front window, was in disarray, and was missing appliances and electronics]; Peoplev Roldan, 211 AD2d 366 [1995] [the two victims testified that they observed the defendantand his accomplice in conversation on the subway, next saw the defendant stand at the top of thesubway platform stairs while his accomplice robbed them, and then watched as the individualsfled together]; People v Guidice, 83 NY2d 630, 636 [1994] [the defendant's recordedstatements that he had sent two men to break the victim's legs constituted an admission of guilt,and thereby was direct evidence, negating the need for a circumstantial evidence charge]). Nosuch direct evidence, either in the form of eyewitness testimony or an admission by defendant,exists here.
In order for the jury to find defendant guilty it had to make a number of logical leapsconnecting defendant to the crimes charged. Had the trial court given the circumstantial evidencecharge, alerting the jury of the need to exclude to a moral certainty every other reasonablehypothesis of innocence, the verdict may have been different (see People v Crespo, 198AD2d 85 [1993], lv denied 82 NY2d 923 [1994]). Further, the circumstantial evidenceadduced at trial did not overwhelmingly establish defendant's guilt, "precluding the conclusion[*4]that the failure to give the proper charge was harmless error"(People v Lynch, 309 AD2d at 878).
We have considered defendant's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Richter and Abdus-Salaam, JJ.