| People v Douglass |
| 2014 NY Slip Op 01638 [115 AD3d 1055] |
| March 13, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vThomas W. Douglass IV, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Danielle Rementer of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered February 10, 2012, upon a verdict convicting defendant of the crimes ofinsurance fraud in the third degree and falsifying business records in the first degree.
Defendant's vehicle, a full-size Toyota pick-up truck, allegedly struck anothervehicle from behind while traveling northbound on State Route 9W in Ulster Countyshortly after midnight. It did not stop, even though the force of the crash caused the othervehicle to flip over onto its roof. The police responded to the accident scene, found alarge Toyota emblem broken into two pieces on the road and, with the assistance of theFBI, were able to later match front grill pieces found at the scene of the accident todefendant's vehicle.
Later on in the evening of the same day that the accident occurred, defendant'svehicle was towed from his residence, which was also in Ulster County on State Route9W approximately two miles north of the accident site, with extensive front-end damage.Defendant then filed a report with the State Police indicating that he had hit a deer inOrange County that evening, and he made a claim through his insurance company for therepairs to his vehicle based on the alleged accident with a deer. Defendant's friend, thetow truck operator who towed his vehicle, testified to the grand jury investigatingdefendant that he had towed the vehicle from the alleged scene of the deer accident inOrange County, rather than from defendant's residence in [*2]Ulster County. However, neither the State Police nor theinsurance company were able to verify that defendant's vehicle had collided with a deer,and the tow truck operator was later convicted of perjury based on his testimony to thegrand jury.[FN*]
Following a jury trial, defendant was acquitted of the charge of leaving the scene of aserious personal injury accident without reporting, but he was found guilty of insurancefraud in the third degree and falsifying business records in the first degree in connectionwith his fraudulent claim to his insurance company regarding the alleged accident with adeer. County Court sentenced defendant, who was a police officer at the time of theaccident, to a prison term of 1 to 3 years for each count, to be served concurrently. Henow appeals.
Initially, we are unpersuaded by defendant's contention that the People failed toprove that at least one element of each crime occurred in Ulster County (see CPL20.40 [1] [a]). "Venue . . . need only be established by a preponderance ofthe evidence" (People v Greenberg, 89 NY2d 553, 555-556 [1997]; seePeople v Ribowsky, 77 NY2d 284, 291-292 [1991]), and it is generally a question tobe determined by the trier of fact. Further, we "give deference to every reasonableinference that a jury could draw from the evidence presented" (People v Groom,188 AD2d 674, 675 [1992]; see People v Moore, 46 NY2d 1, 6-7 [1978]). Here,the claims processor from defendant's insurance company testified that he calleddefendant and confirmed the details of defendant's claim that he had hit a deer.Testimony and documentary evidence from the People's telecommunications expert thenestablished that the cell tower used during the call was in Ulster County, less than twomiles from defendant's residence. The jury thus had a reasonable basis on which toconclude that defendant was in Ulster County while providing false information to hisinsurance company in connection with his efforts to obtain reimbursement for his claim(see People v White, 104AD3d 1056, 1057 [2013], lv denied 21 NY3d 1021 [2013]; People vLanFranco, 278 AD2d 8, 8 [2000], lv denied 96 NY2d 736 [2001];People v Chaitin, 94 AD2d 705, 705 [1983], affd 61 NY2d 683 [1984];compare People vLightbody, 62 AD3d 632, 633 [2009]).
We also disagree with defendant's contention that County Court failed tomeaningfully respond to the jury's notes by failing to have requested testimony read backprior to the verdict being reached (see CPL 310.30; People v O'Rama, 78NY2d 270, 276 [1991]). The jury started deliberations the day before the Thanksgivingholiday and requested the readback of certain testimony. Not all of the requestedtestimony had been prepared and read back prior to a subsequent note from the juryrequesting a re-reading of instructions on the elements of the first two charges only andwithdrawing the previous requests for any other testimony. After the [*3]instructions were re-read, the jury reached its verdict and,although defendant now contends that the court should have asked the jury whether itwanted any of the testimony read back, he did not make that specific request at the time.The note withdrawing the previous requests for testimony was unequivocal and "thecourt rightfully concluded that, by handing up a note stating that it had rendered a verdictprior to the court's full response to its inquiries, the jury had resolved its questions andwas no longer in need of the requested information" (People v Sorrell, 108 AD3d 787, 793 [2013]; see People v Cornado, 60AD3d 450, 451 [2009], lv denied 12 NY3d 913 [2009]; People v Albanese, 45 AD3d691, 692 [2007], lv denied 10 NY3d 761 [2008]).
Nor can we agree with the argument that County Court improperly considered thecharge on which defendant was acquitted in determining his sentence. To the contrary,County Court expressly acknowledged at sentencing that it would not consider the crimeof leaving the scene of a serious personal injury accident. Instead, the court properlyconsidered defendant's position as a police officer when he committed the crimes forwhich he was convicted. The court stated that the determination to impose a sentence ofincarceration was based on the damage to the public's trust in the criminal justice systemcaused by defendant's dishonesty, his failure to accept any responsibility and his lack ofremorse. In our view, the ambiguous comment regarding the "pain" that defendant hadcaused was superfluous and not the basis of the sentence imposed, which we find to beneither harsh nor excessive (see People v Boccaccio, 288 AD2d 898, 898 [2001];People v Neish, 232 AD2d 744, 747 [1996], lv denied 89 NY2d 927[1996]).
Defendant's remaining contentions have been considered and determined to have nomerit.
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Although defendantclaims that the State Police found deer hair on his vehicle, the Trooper who filed theaccident report testified that, while he stood on the ground, the tow truck operatorjumped up on the flatbed of the tow truck and pointed to what he claimed was deer hair.The Trooper did not closely inspect defendant's vehicle and, when he went to where thedeer accident allegedly occurred, he was unable to find any debris or other evidence thatthere had been an accident. The insurance company's estimator testified that, based on thedamage to defendant's vehicle, it appeared that it had collided with a hard, solid object,rather than a deer.