| People v Farnsworth |
| 2013 NY Slip Op 01106 [103 AD3d 982] |
| February 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRebecca Farnsworth, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered May 27, 2010, upon a verdict convicting defendant of the crime of grandlarceny in the second degree.
Defendant was the business manager and bookkeeper for Adirondack AudiologyAssociates in the Village of Saranac Lake, Franklin County from 2004 until February2008, when her employer became aware that she had charged thousands of dollars ofpersonal expenditures to Adirondack's corporate credit card, in addition to using businessfunds to purchase gasoline and cell phone service for her personal use. Defendant wasimmediately discharged from her employment and thereafter charged with grand larcenyin the second degree and falsifying a business record in the first degree. After a jury trial,she was acquitted of falsifying a business record, but convicted of grand larceny in thesecond degree and sentenced to a prison term of 3 to 9 years and ordered to payrestitution in the amount of $150,000. On defendant's appeal, we now affirm.
First, we do not agree with defendant that the verdict was against the weight of theevidence. Given defendant's testimony that she intended to repay her employer for thepersonal expenses charged which, if credited, might negate the element of larcenousintent necessary to sustain her conviction (see Penal Law § 155.05 [1]), wemust "weigh the relative probative force [*2]ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" and determine whether the jury's verdict was against theweight of the credible evidence (People v Romero, 7 NY3d 633, 643 [2006] [internalquotation marks and citations omitted]). Adirondack's owner, audiologist Keith Walsh,testified that he hired defendant to manage the finances of his practice. He stated that heissued corporate credit cards to defendant, his three other audiologists and himself,instructing each that the cards were to be used for business purposes only. The otheraudiologists corroborated this testimony and stated that they never used their cards forpersonal expenses. Walsh acknowledged, however, that he and his wife occasionallyused the corporate credit cards for personal expenses, but they paid these back and usedthe card to increase the "points" they accumulated on it, which they could redeem forcash rewards. Walsh also made several personal loans to defendant, one apparently stilloutstanding, to help her with the construction of her home and to assist in resolving hermother's debts.
The People offered unrefuted testimony that, during the course of her employment,defendant charged over 400 personal expenses and cash advances to the corporate creditcard, amounting to approximately $80,000, and also accrued $21,000 in personalgasoline expenses and nearly $6,000 in personal telephone expenses that she paid withAdirondack's funds. Testimony was also offered that defendant had unilaterally increasedher salary from $35,000 in 2004, to $43,000 in 2005, to $58,000 in 2006, and to $61,000in 2007, and was on course to earn $74,000 in 2008. Walsh testified that he gave hisemployees a raise in August of about three percent and authorized Christmas bonuses,but that he did not recall defendant ever asking him for a larger raise.
In her defense, defendant did not specifically deny this spending, but testified thatWalsh told her that the corporate credit card could be used for both business and personalexpenses. She stated that she intended to repay what she owed, although she did notknow how much money that was, and that because she intended to repay the money, itwas not theft. Her former employer also testified that defendant had borrowed moneyfrom his business when she worked for him and had paid it back. Defendant also reliedon the fact that she listed over $95,000 as debt owed by her in Adirondack's books asaccounts receivable as evidence that she never attempted to conceal her use of thebusiness's funds. The People offered testimony of an accountant who had examinedAdirondack's books and agreed that these figures were stated as being owed to thecompany on its balance sheets. He explained, however, that people seeking to perpetratea fraud on a business by personal use of a corporate credit card sometimes attribute thesecharges to accounts receivable in an effort to hide them as legitimate business expenses.Further, although defendant stated her intention of repaying the debt, she made nopayments between the time of her termination and the trial and, a few days after thediscovery of her expenditures, she was found shredding financial documents in heroffice. Given the substantial evidence that defendant engaged in the excessive use ofAdirondack's resources for her personal expenses without authorization, we find that theverdict is not against the weight of credible evidence (see People v Bonneau, 94 AD3d 1158, 1159 [2012], lvdenied 20 NY3d 985 [2012]; People v DeDeo, 59 AD3d 846, 850-851 [2009], lvdenied 12 NY3d 782 [2009]; People v Waugh, 52 AD3d 853, 854-855 [2008], lvdenied 11 NY3d 796 [2008]).
Finally, defendant—who was released on parole in September2012—argues that her sentence was harsh and excessive. We find no extraordinarycircumstances or abuse of discretion that would form a basis to disturb defendant'ssentence, which falls well within the statutory guidelines (see Penal Law§§ 70.00 [2] [c]; [3] [b]; 155.40 [2]). At sentencing, County [*3]Court considered the letters written in defendant's support,describing her as a hard-working, devoted mother of two small children, and her lack ofa prior criminal history. It then balanced those factors against the magnitude of the deceitinvolved in stealing—over a course of several years—such a large amountof money from a small healthcare practice whose owners trusted and helped her.Accordingly, we find no cause to warrant a reduction in her sentence (see People v Helstein, 95AD3d 1564, 1564 [2012], lv denied 19 NY3d 997 [2012]; People v Arbas, 85 AD3d1320, 1323 [2011], lv denied 17 NY3d 813 [2011]; People v Solock, 50 AD3d1166, 1166-1167 [2008]; compare People v Forkey, 72 AD3d 1209, 1211 [2010]).
Mercure, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.