| People v Yanayaco |
| 2012 NY Slip Op 06558 [99 AD3d 416] |
| October 2, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Gerardo Yanayaco, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered June 16, 2009,convicting defendant, after a jury trial, of insurance fraud in the third degree, grand larceny in thethird degree, offering a false instrument for filing in the first degree, falsifying business recordsin the first degree and scheme to defraud in the first degree, and sentencing him to concurrentterms of 10 months, and order, same court and Justice, entered on or about October 15, 2010,which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). On thecontrary, the evidence of defendant's guilt was overwhelming. Defendant's knowing andintentional participation in an insurance fraud scheme was established by accomplice testimonythat was fully corroborated by other evidence, including, among other things, recordedconversations with undercover agents posing as patients.
Although defendant concedes that the jury's mixed verdict was not legally repugnant, hebases his weight of the evidence argument primarily on the theory that the acquittals reflectedimplied findings of fact that undermined the convictions. In performing weight of evidencereview, we may consider the jury's verdict on other counts (see People v Rayam, 94NY2d 557, 563 n [2000]). However, "[w]here a jury verdict is not repugnant, it is imprudent tospeculate concerning the factual determinations that underlay the verdict because what mightappear to be an irrational verdict may actually constitute a jury's permissible exercise of mercy orleniency" (People v Horne, 97 NY2d 404, 413 [2002]; see also People vHemmings, 2 NY3d 1, 5 n [2004]). Furthermore, "in performing its de novo review functionas a 'thirteenth juror,' there is no good reason why a court should resolve any inconsistency infavor of a defendant rather than the People who, after all, have no right of appellate review ofjury acquittals in mixed verdicts" (Rayam, 94 NY2d at 562). In any event, we find thatthere was a reasonable evidentiary basis for the mixed verdict.
The court properly exercised its discretion (see People v Samandarov, 13 NY3d 433, 439-440 [2009]) indenying the CPL 440.10 motion without holding a hearing. The trial record and the parties'submissions were sufficient to decide the motion, and there was no factual dispute requiring ahearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]).[*2]
In his motion, defendant claimed that trial counselrendered ineffective assistance by failing to produce enhanced images of a videotape depictingthe undercover agent's patient file, which purportedly showed that certain annotations were noton the file when defendant last saw the patient. However, we find that defendant receivedeffective assistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).Regardless of whether counsel should have produced these images, there is no reasonablepossibility that this omission had any effect on the outcome of the case. Defendant's additionalclaim that the prosecutor elicited and relied upon false testimony about the annotations on thepatient file is without merit. Concur—Friedman, J.P., Acosta, Renwick, Richter andAbdus-Salaam, JJ.