| People v Morse |
| 2013 NY Slip Op 07849 [111 AD3d 569] |
| November 26, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Leigh Morse, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Amyjane Rettew of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered July19, 2011, convicting defendant, after a jury trial, of scheme to defraud in the first degree,and sentencing her to a term of four months of intermittent imprisonment to be served onweekends, five years' probation and restitution in the amount of $1.65 million,unanimously affirmed.
Defendant's dismissal motion, which merely made reference to unspecified"elements," failed to preserve her claim that the evidence was legally insufficient toprove her guilt of scheme to defraud in the first degree (see People v Gray, 86NY2d 10 [1995]), and we decline to review it in the interest of justice. As an alternativeholding, we reject it on the merits. Defendant was an employee of an art gallery thatembezzled money from owners of artworks consigned to the gallery. The evidenceestablished both that defendant participated in a unitary scheme to defraud the victims,which included closely related acts of nondisclosure and active misrepresentation, andthat the gallery's owner, with whom defendant acted in concert, obtained property as aresult of that scheme (see Penal Law § 190.65 [2]; People v FirstMeridian Planning Corp., 86 NY2d 608 [1995]). We have considered and rejecteddefendant's arguments concerning these issues.
The court properly determined the restitution amount without holding a hearingpursuant to Penal Law § 60.27. Defendant's request for such a hearing was onlyconnected to her argument that restitution should be determined based on her personalfinancial gain, which she believed to be somewhere between $150,000 and $300,000 buthad been unable to precisely fix the amount. Once the court decided that it would baserestitution on the victims' actual losses, there was no factual challenge to the People'scalculation based on the amounts invoiced for the art works. The calculation was basedon evidence already in the trial record. (People v Consalvo, 89 NY2d [*2]140, 144 [1996]). The court, exercising its discretion basedon consideration of all of the circumstances, then imposed a restitution amount that wasless than a fourth of the People's calculation of loss. Concur—Mazzarelli, J.P.,Acosta, Moskowitz, Manzanet-Daniels and Gische, JJ.