| People v Cioffi |
| 2013 NY Slip Op 02588 [105 AD3d 971] |
| April 17, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jerry Cioffi, Appellant. The People of the State of New York,Respondent, v Jerry Cioffi Services, Inc., Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel;Louis Levithan on the brief), for respondent.
Appeals by the defendants respectively from separate judgments of the CountyCourt, Rockland County (Kelly, J.), both rendered January 18, 2012, convicting each ofthem of grand larceny in the third degree, upon a jury verdict, and imposing sentences.By decision and order on motion dated February 6, 2012, this Court granted the motionof the appellant Jerry Cioffi to stay execution of the judgment rendered against himpending hearing and determination of his appeal.
Ordered that the judgments are reversed, as a matter of discretion in the interest ofjustice, and a new trial is ordered.
Contrary to the defendants' contention, count two of the indictment was notjurisdictionally defective, as it cited the applicable statutes and sufficiently tracked thelanguage thereof to afford the defendants fair notice of the charges against them(see CPL 200.50 [7] [a]; People v Smith, 98 AD3d 533, 533-534 [2012]; Peoplev Dudley, 289 AD2d 503, 503-504 [2001]).
The defendants' challenge to the legal sufficiency of the evidence presented at trial isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendants' guilt of grand larceny in the third degreebased upon a violation of Lien Law § 79-a beyond a reasonable doubt (see People v Miller, 23 AD3d699, 700-701 [2005]; People v Melino, 16 AD3d 908, 909-910 [2005];People v Lincoln, 272 AD2d 945, 945-946 [2000]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the [*2]verdict of guilt was not against the weight of the evidence(see People v Romero, 7NY3d 633 [2006]).
The defendants contend that the respective judgments of conviction should bevacated due to an alleged conflict of interest of the District Attorney. The contention isunpreserved for appellate review (see People v Good, 62 AD3d 1041, 1042 [2009];People v Krom, 91 AD2d 39, 46-47 [1983], affd 61 NY2d 187 [1984])and, in any event, is without merit. The defendants failed to establish " 'actual prejudicearising from a demonstrated conflict of interest or a substantial risk of an abuse ofconfidence' " (People v English, 88 NY2d 30, 33-34 [1996], quoting Matterof Schumer v Holtzman, 60 NY2d 46, 55 [1983]; see People v Brown, 81 AD3d1305, 1306-1307 [2011]; People v Rivera, 27 AD3d 489, 490 [2006]).
However, the defendants correctly contend that the trial court's failure to instruct thejury that the statutory presumption contained in Lien Law § 79-a is permissiveviolated the defendants' constitutional rights to due process (see Francis vFranklin, 471 US 307 [1985]; Sandstrom v Montana, 442 US 510 [1979];People v McKenzie, 67 NY2d 695 [1986]). Although the defendants' contentionis unpreserved for appellate review (see CPL 470.05 [2]; People vMcKenzie, 67 NY2d at 697; People v Torres, 46 AD3d 925, 925 [2007]), wenevertheless review it in the exercise of our interest of justice jurisdiction (seeCPL 470.15 [6] [a]).
Pursuant to Lien Law article 3-A, a contractor who receives funds under a contractfor the improvement of real property must hold the funds as a trustee, and if thecontractor applies trust funds for any purpose other than the purposes of the trust andfails to pay a trust claim within 31 days of the time it is due, he or she may be guilty oflarceny (see Lien Law §§ 70, 71, 79-a [1] [b]; People vMiller, 23 AD3d at 700). The trial court instructed the jury, in accordance with LienLaw § 79-a (3), that "[f]ailure of the trustee to keep books and records required bythis section shall be presumptive evidence that the trustee has applied . . .trust funds . . . for purposes other than a purpose of the trust." Like allstatutory presumptions in New York, the presumption in Lien Law § 79-a (3) ispermissive (see People v Rosano, 50 NY2d 1013, 1016 [1980]; see alsoMatter of Raquel M., 99 NY2d 92, 95 [2002]; People v McKenzie, 67 NY2dat 696). The trial court's failure to instruct the jury that the presumption "was permissive,or to emphasize that, despite the presumption, the same burden of proof remained withthe People, 'was bound to result in misleading the . . . jurors into believingthat the presumption is conclusive and binding upon them' " (People v Smith, 23 AD3d415, 416 [2005] [citation omitted], quoting People v Williams, 136 AD2d132, 135-136 [1988]; see Francis v Franklin, 471 US 307 [1985]; Sandstromv Montana, 442 US 510 [1979]). Such a mandatory presumption is unconstitutional,as it relieves the People of their burden of proving every element of the crime andundermines the jury's " 'responsibility at trial, based on evidence adduced by the[People], to find the ultimate facts beyond a reasonable doubt' " (Francis vFranklin, 471 US at 316, quoting County Court of Ulster Cty. v Allen, 442US 140, 156 [1979]; see People v Smith, 23 AD3d at 416; People vSellers, 109 AD2d 387, 388 [1985]).
Since the evidence of the defendants' guilt was not overwhelming, and it cannot besaid that there is no reasonable possibility that the error might have contributed to thedefendants' conviction (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Jaikaran, 95 AD3d903, 904 [2012]), the error was not harmless beyond a reasonable doubt.Accordingly, the judgments must be reversed and the matter remitted to the SupremeCourt, Rockland County, for a new trial.
The defendants' remaining contentions have been rendered academic in light of ourdetermination. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.