| People v Haggerty |
| 2013 NY Slip Op 00795 [103 AD3d 438] |
| February 7, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v John F. Haggerty, Jr., and Special Election Operations, LLC,Appellants. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), renderedDecember 19, 2011, convicting defendant John F. Haggerty, Jr., after a jury trial, ofgrand larceny in the second degree and money laundering in the second degree andsentencing him to an aggregate term of 1
The verdict was based on legally sufficient evidence, and there was no unlawfulvariance between the indictment and the proof. The indictment, the proof at trial, theprosecutor's summation and the court's instructions were all based on the theory thatdefendant Haggerty stole money from Mayor Bloomberg by making false representationsthat the money that the Mayor transferred to the Independence Party would be used foran extensive ballot security operation costing about $1.1 million. Although the Mayorcould not have controlled how the Independence Party used that money, the theft wascommitted when Haggerty used false representations to cause the Mayor to transfer themoney to the Party. While Haggerty also deceived the Independence Party into believingthat it was paying a vendor for ballot security services when it transferred the money toHaggerty's shell corporation, the Mayor remained the true victim of Haggerty'sdeception. Accordingly, the evidence established a theft from the Mayor, as charged inthe indictment (compare People v Grega, 72 NY2d 489 [1988]). Haggerty'sassertion that the jury convicted him on an improper theory is based on speculativeinferences from jurors' notes.
Since the transfer of the money from the Mayor to the Independence Party was thelarceny, the evidence also proved defendants' guilt of money laundering, based on thetransfer of the proceeds of the larceny from the Independence Party to the shellcorporation. The evidence supports the conclusion that the transfer was designed inwhole or in part to "conceal or disguise the nature, the location, the source, theownership or the control of the proceeds" of the preexisting larceny (Penal Law §470.15 [1] [b] [ii] [A]).
The court properly exercised its discretion in denying defendants' mistrial motion,made [*2]when the prosecutor addressed a remark to thecourt during a colloquy on a matter of law, but within the hearing of the jury, thatimpinged on Haggerty's right to refrain from testifying. The jury is presumed to havefollowed the court's prompt curative instruction, as well as its other instructions to drawno unfavorable inference from Haggerty's failure to testify (see People v Davis,58 NY2d 1102, 1104 [1983]).
We have considered and rejected defendants' arguments concerning the bestevidence rule (see generally Schozer v William Penn Life Ins. Co. of N.Y., 84NY2d 639, 643-644 [1994]). Concur—Mazzarelli, J.P., Acosta, Saxe, Renwickand Clark, JJ.