| People v Weiss |
| 2012 NY Slip Op 06998 [99 AD3d 1035] |
| October 18, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent-Appellant, vMichelle Weiss, Also Known as Michelle Jeker,Appellant-Respondent. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent-appellant.
Peters, P.J. Cross appeals from a judgment of the County Court of Broome County (Cerio,J.), rendered February 8, 2011, upon a verdict convicting defendant of the crime of perjury in thefirst degree (two counts).
In October 2005, during a time when defendant and her former husband, Brian Jeker, wereinvolved in a hotly contested custody dispute concerning their children, defendant claimed thatJeker assaulted her as she was leaving a "pee wee" football game in the Town of Maine, BroomeCounty. When police responded to the incident, they found defendant visibly injured. Twowitnesses, Megan Schmid and Stephanie Murphy, provided sworn statements depicting a man ofJeker's description as the assailant. Jeker was thereafter charged in connection with the incidentbut, on the eve of his trial, Schmid and Murphy each recanted their statements. In so doing,Schmid explained to the prosecutor that the injuries defendant suffered, rather than being causedby Jeker, were the result of a planned and consensual attack against defendant. In plotting theassault, defendant met Murphy through a mutual acquaintance, Kevin Hyde, and then defendant,Murphy and Schmid met at a restaurant where defendant offered Murphy and Schmid $500 tofalsely report that Jeker caused her injuries. As part of the plot, defendant was attacked [*2]by a neighbor of Murphy and Schmid, whom defendant had paid$50, and self inflicted some of her injuries with a razor blade. Accordingly, the charge againstJeker was dismissed.
Thereafter, in February 2006, defendant approached Murphy and offered to pay her a sum ofmoney to sign a notarized statement retracting her earlier recantation and reasserting the truth ofher initial statement. As a result, defendant was indicted and, in May 2007, she pleaded guilty tothe crime of attempted bribing of a witness and was sentenced to five years of probation. Duringher plea allocution, defendant admitted only that she sought to influence Murphy as a witness ina court proceeding by preparing for her an affidavit with which Murphy had no involvement orinput. The plea neither required defendant to admit that the attack against her was orchestrated byher or that Jeker was the assailant. Such plea was in satisfaction of any charges regarding herfabrication of the assault, including any prosecution related to perjured testimony that defendantprovided in a 2005 deposition concerning the child custody proceeding during which shedescribed Jeker as the assailant and denied knowing Murphy and Schmid.
During a subsequent deposition regarding a custody modification proceeding commenced bydefendant in July 2007, defendant provided sworn testimony that Jeker had attacked her in 2005,that she had not met Murphy through Hyde and that she had never met with Schmid at therestaurant in the fall of 2005. Based upon this allegedly false testimony, defendant was indictedon three counts of perjury in the first degree. She successfully moved to dismiss the perjury countrelated to the statements regarding Jeker's conduct[FN*]and later moved to dismiss the remaining counts of the indictment, claiming that the prosecutionof these charges was in violation of the terms of her prior plea agreement. County Court deniedthe motion after a hearing, finding no merit to defendant's contention that the terms of the pleaagreement permitted her to commit perjury in future custody proceedings.
Following a jury trial, defendant was found guilty on the remaining counts of perjury in thefirst degree. At sentencing, County Court denied the People's request to sentence her as a secondfelony offender, concluding that she was not made aware during the May 2007 plea allocutionthat the plea did not satisfy future false statements related to the 2005 assault. The courtthereafter sentenced defendant to concurrent five-year terms of probation, and these cross appealsensued.
Defendant contends that the statements claimed to be false were not material to the issuesbefore Family Court and, therefore, cannot support her conviction on each count of perjury in thefirst degree. We disagree. A person is guilty of perjury in the first degree when he or she givesfalse sworn testimony that is "material to the action, proceeding or matter in which it is made"(Penal Law § 210.15). "To be material, the statement need not prove directly the fact inissue; it is sufficient if it is circumstantially material or tends to support and give credit to thewitness in respect to the main fact" (People v Davis, 53 NY2d 164, 170-171 [1981][internal quotation marks and citation omitted]). Thus, a statement is material if it " 'reflect[s] onthe [*3]matter under consideration' . . . , even if onlyas to the witness' credibility" (id. at 171, quoting People v Stanard, 42 NY2d 74,80 [1977], cert denied 434 US 986 [1977]; see People v Perino, 19 NY3d 85, 89 [2012]; People v Tucker, 95 AD3d 1437,1441 [2012]; People v Evans, 269 AD2d 797, 797 [2000], lv denied 95 NY2d834 [2000]; People v Martin, 134 AD2d 767, 768 [1987], lv denied 71 NY2d 899[1988]). Notably, whether the false testimony is material is a question to be resolved by the trierof fact (see People v Perino, 19 NY3d at 89; People v Williams, 51 AD3d 1141, 1143 [2008], lv denied10 NY3d 959 [2008]).
Here, the People established that the perjured testimony at issue—that is, defendant'sdenials that she had met with Murphy and Schmid prior to the claimed assault—werematerial to the Family Court proceeding in which they were given. Jeker's counsel testified thathe specifically asked defendant the questions in order to memorialize her responses so that hecould later test her credibility at the hearing on the custody modification petition. As the falsetestimony bore directly on defendant's credibility, both generally and specifically regarding herclaim that she had been assaulted by Jeker, it was material to Family Court'sinquiry—which focused on whether a modification of custody would be in the bestinterests of the child (see People v Davis, 53 NY2d at 171; People v Thomas, 162AD2d 822, 823 [1990]). Accordingly, we find defendant's convictions for perjury in the firstdegree to be supported by legally sufficient evidence.
Nor are the convictions against the weight of the evidence. The fact that Murphy and Schmidhave criminal histories and were testifying pursuant to cooperation agreements with the Peopledid not render their testimony unworthy of belief (see People v Thompson, 75 AD3d 760, 763 [2010], lvdenied 15 NY3d 896 [2010]; Peoplev Vargas, 60 AD3d 1236, 1238 [2009], lv denied 13 NY3d 750 [2009]). Further,the minor inconsistencies between the testimony of the People's witnesses regarding the assaultscheme were fully developed at trial and presented a credibility issue for the jury to resolve (see People v Davis, 83 AD3d1210, 1211 [2011], lv denied 17 NY3d 794 [2011]; People v Stearns, 72 AD3d 1214,1216 [2010], lv denied 15 NY3d 778 [2010]). Evaluating the evidence in a neutral lightand according due deference to the jury's credibility assessments (see People v Bleakley,69 NY2d 490, 495 [1987]; People v Vargas, 60 AD3d at 1239), we are satisfied that theverdict is supported by the weight of the evidence. Defendant's additional claim that theindictment is the product of a perjury trap sprung upon her by the People is similarly withoutmerit (compare People v Tyler, 46 NY2d 251, 257-259 [1978]).
Turning to the People's cross appeal, we agree that County Court erred in refusing tosentence defendant as a second felony offender. A defendant may be sentenced as a secondfelony offender if the prosecution demonstrates beyond a reasonable doubt that the defendant waspreviously convicted of a felony (see CPL 400.21 [1], [7]). " 'Once the fact of the priorconviction has been established, it is then incumbent upon the defendant to allege and prove thefacts underlying the claim that the conviction was unconstitutionally obtained' " (People v Pierre, 45 AD3d 1056,1057 [2007], lv denied 9 NY3d 1037 [2008], quoting People v Harris, 61 NY2d9, 15 [1983] [citation omitted]; see CPL 400.21 [7] [b]; People v Pelkey, 63 AD3d 1188,1190 [2009], lv denied 13 NY3d 748 [2009]). Here, there is no dispute that the Peoplemet their initial burden of establishing defendant's prior felony conviction for attempted bribingof a witness. In response, defendant maintained that the circumstances of her plea negotiationsand subsequent guilty plea led her to believe that she would be immune from future prosecutionsrelated to any future false statements regarding the circumstances surrounding the 2005 assault.An objective reading of the bargain, however, belies her claim.[*4]
During the plea proceeding, defendant's counsel, MichaelFarkas, stated that the plea agreement was in satisfaction of certain crimes and allegations,including charges related to defendant's alleged unlawful practice of psychiatry, psychologyand/or counseling, as well as uncharged allegations that defendant had committed perjury in a2005 deposition, and noted that the People agreed that "these will not be prosecuted in the futureonce this plea is formalized." Indeed, a letter from Assistant District Attorney Stephen Ferri toFarkas prior to the plea confirms that the agreement would satisfy "[a]ny uncharged perjurycounts from testimony regarding the November 16, 2005 incident." Notably, Farkas furtheradvised the court that the guarantees provided by the People would "[o]bviously . . .not cover any matters that are not known to the District Attorney or police department." Althoughthe record reveals that the People were aware at the time of the plea that defendant was intent oncontinuing to litigate her custody battle, that the 2005 alleged assault would necessarily be anissue raised in those proceedings and that defendant would likely challenge the testimony ofMurphy and Schmid, there is nothing to suggest that defendant would not be prosecuted for anysubsequent false testimony in that regard or that her plea was otherwise in satisfaction of crimesnot yet committed. Since an objective reading of the plea bargain is susceptible to but oneinterpretation, defendant's misunderstanding or subjective view of this aspect of the agreement isinsufficient to demonstrate that her plea was unconstitutionally obtained (see People v Champion, 20 AD3d772, 773 [2005]; People v James, 251 AD2d 813, 815 [1998]; People vMorales, 248 AD2d 257, 257 [1998], lv denied 92 NY2d 857 [1998]; People vJohns, 236 AD2d 748, 748 [1997]; People v Leggett, 163 AD2d 862, 863 [1990]).Nor was defendant's plea rendered invalid due to the fact that she was not specifically informedthat, as a consequence of the plea, she could be subsequently prosecuted for any future perjuriousstatements made regarding the 2005 assault (see generally People v Harnett, 16 NY3d 200, 205-206 [2011];People v Ford, 86 NY2d 397, 403 [1995]). As defendant failed to sustain her burden ofdemonstrating the unconstitutionality of the plea, the court erred in not sentencing her as asecond felony offender. Accordingly, the sentence must be vacated and the matter remitted toCounty Court for resentencing.
Lahtinen, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of BroomeCounty for resentencing; and, as so modified affirmed.
Footnote *: This count of perjury in the firstdegree charged defendant with falsely stating that she was attacked by Jeker at the pee weefootball game in response to the following question: "[W]hat did you claim happened inOctober of 2005" (emphasis added). Because defendant did, in fact, make such a claim, the courtfound the essential element of falsity to be lacking.