| People v Sutera |
| 2013 NY Slip Op 04696 [107 AD3d 556] |
| June 20, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v James Sutera, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J., at dismissalmotion; Bruce Allen, J., at jury trial and sentencing), rendered August 11, 2010,convicting defendant of perjury in the first degree, and sentencing him to five years'probation, unanimously affirmed.
The court properly denied defendant's pretrial motion to dismiss the indictment onthe ground that the New York Inspector General lacked the authority to conduct theinvestigation into the Waterfront Commission of New York Harbor, during whichdefendant made allegedly false sworn statements. The Inspector General was authorizedto conduct such an investigation pursuant to Executive Law § 51, which gives theInspector General jurisdiction over various government entities including"commissions"; the Waterfront Commission is not a public authority and thus did not fallunder that statute's exception to the Inspector General's jurisdiction for "multi-state""public authorities." The Commission is a bistate commission, not a bistate authority. Theterms authority and commission are not interchangeable, and the fact that theCommission is called a commission and not an authority is not merely a matter ofnomenclature. A public authority, though created by the State, is "independent andautonomous, deliberately designed to be able to function with a freedom and flexibilitynot permitted to an ordinary State board, department or commission" (Matter of Levyv City Commn. on Human Rights, 85 NY2d 740, 744 [1995]). In contrast, theWaterfront Commission, created by New York and New Jersey with congressionalconsent for the purpose of fighting criminal activity and promoting fair hiring practiceson the waterfront, is a relatively conventional "part of the government of each of thestates" (State v Murphy, 36 NJ 172, 186, 175 A2d 622, 629 [1961]). SinceExecutive Law § 51 conveyed the necessary jurisdiction, the executive orderdirecting the Inspector General to investigate the Commission was also lawful(see Executive Law § 6).
Defendant did not preserve his contention that the entire prosecution was barredbecause he could not be prosecuted under New York law in the New York legal systemfor making a false statement regarding the employment practices of the Commission,since it was created by a compact between New York and New Jersey (see Matter ofMalverty v Waterfront Commn. of N.Y. Harbor, 71 NY2d 977, 979 [1988]), and wedecline to review it in the interest of justice. As an alternate holding, we reject it on themerits. "The Commission is not a separate level of government somewhere between thefederal government and the contracting states," but "is part [*2]of the government of each of the states," and is notgenerally exempt from applicable state law, "except insofar as the states agreed expresslyor by fair implication to place it beyond them" (Murphy, 36 NJ at 186, 175 A2dat 629, 630). Furthermore, this prosecution was not about New York attemptingunilaterally to regulate the employment practices of the Commission. Instead, thegravamen of the charge was that, in New York County, defendant made false swornstatements relating to cheating, or offering to help others to cheat, on employmentexaminations, a matter plainly under the normal jurisdiction of the District Attorney.Similarly, nothing about this prosecution and conviction was inconsistent with theCompact Clause (US Const, art 1, § 10).
To the extent that defendant also challenges the sufficiency of the evidence on thesame grounds as contained in his pretrial motion to dismiss, that challenge is withoutmerit for the reasons already stated. Defendant's remaining legal sufficiency claims areunpreserved and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits. We also find that the verdict was not againstthe weight of the evidence (seePeople v Danielson, 9 NY3d 342, 348-349 [2007]). The evidence satisfied theperjury corroboration requirement of Penal Law § 210.50. The testimony of themain witness, Taveras, was corroborated by a second witness, Brando, even thoughTaveras's testimony was essentially direct evidence of the falsity of defendant's swornstatements while Brando's testimony was more in the nature of circumstantial evidence.Moreover, there was additional corroborating evidence in the form of recordedconversations and evidence of defendant's consciousness of guilt. Defendant's remainingarguments concerning the sufficiency and weight of the evidence are without merit.
The court provided a meaningful and correct response to a note from the deliberatingjury (see People v Malloy, 55 NY2d 296, 301-302 [1982], cert denied459 US 847 [1982]). The court properly instructed the jury that it could convictdefendant if it found beyond a reasonable doubt that any of the four statements allegedunder the count of which he was ultimately convicted met the definition of perjury. Thisdid not change the theory set forth in the indictment, or the People's bill of particulars,alleging that each of the four statements was false (see People v Charles, 61NY2d 321, 327-328 [1984]; People v Frascone, 271 AD2d 333 [1st Dept 2000])."Use of the conjunctive 'and' in the indictment did not obligate the People to prove morethan what was required under the statutes" (People v Molloy, 58 AD3d 404, 404 [1st Dept 2009],lv denied 12 NY3d 856 [2009]). The People were entitled to argue to the jurythat each statement was false, thereby implicitly arguing that at least one wasfalse, and by doing so they did not assume the burden of proving that all werefalse. Furthermore, the court's supplemental instruction did not contradict anything in itsoriginal charge. We have considered and rejected defendant's remaining argumentsconcerning the court's response.[*3]Defendant's challenges to two evidentiary rulings bythe trial court are unavailing. In each instance, defendant opened the door to thetestimony at issue. Concur—Tom, J.P., Acosta, Saxe and Freedman, JJ.
Motion to strike brief denied.