| People v Casiano |
| 2014 NY Slip Op 03362 [117 AD3d 1507] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1] (May 9, 2014)
| The People of the State of New York, Respondent, vOlga Casiano, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered July 12, 2010. The judgment convicted defendant, upon a jury verdict, ofgrand larceny in the third degree, falsifying business records in the first degree (7 counts)and offering a false instrument for filing in the first degree (7 counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed as amatter of discretion in the interest of justice and on the law, the indictment is dismissedand the matter is remitted to Supreme Court, Erie County, for proceedings pursuant toCPL 470.45.
Memorandum: Defendant appeals from a judgment convicting her, upon ajury verdict, of grand larceny in the third degree (Penal Law § 155.35 [1])and seven counts each of falsifying business records in the first degree(§ 175.10) and offering a false instrument for filing in the first degree(§ 175.35). We agree with defendant that the judgment must be reversedand the indictment dismissed (see People v McNab, 167 AD2d 858 [1990]).
This matter stems from allegations of public assistance fraud relating to defendant'soperation of a daycare. In October 2007, the New York State Office of Children andFamily Services (OCFS) issued defendant a license to run a group family day care home(see 18 NYCRR part 416). Pursuant to OCFS regulations, a group family daycare home "must be operated by a provider and have at least one assistant present duringthe hours that care is provided" (18 NYCRR 413.2 [j]), and the provider and assistantmust be the "primary caregivers" of the children (18 NYCRR 416.8 [c]). Any "caregiverswho are not providers or assistants must meet the qualifications of an assistant" (18NYCRR 413.2 [j] [2] [ii]). Defendant thereafter contracted with the Erie CountyDepartment of Social Services (DSS) to provide daycare services to low income families.Parents applied to DSS for childcare subsidies and received preapproval letters indicatingthe days of the week and the number of hours per day they were approved for daycare.On a monthly basis, defendant submitted vouchers to DSS listing the children in her careand the hours that she provided daycare during that month, and DSS paid defendant inaccordance with the vouchers.
OCFS received a complaint against defendant in 2008, and an OCFS licensor wasassigned to investigate the complaint. From February to June 2008, the licensor visitedthe daycare on several occasions and, during many of those visits, no one answered thedoor and there were no signs of activity inside. During another visit, an unlicensedassistant was supervising the children, in violation of OCFS regulations. As a result ofthe investigation, OCFS referred the case to DSS for suspected public assistance fraud.DSS investigators conducted periodic surveillance of the daycare between April and July2008 and many times did not see any children at the daycare.
Defendant was charged by indictment with one count of grand larceny in the thirddegree (Penal Law § 155.35 [1]) and 10 counts each of falsifying businessrecords in the first degree (§ 175.10) and offering a false instrument forfiling in the first degree (§ 175.35). Count one of the indictment allegedthat, between October 1, 2007 and July 30, 2008, defendant "stole property having avalue in excess of [$3,000], to wit: a sum of money, belonging to [DSS]." Counts 2through 11 charged defendant with making false entries in the business records of DSSbetween various dates by submitting vouchers identified only as having either vendorNo. 42835XH (counts 2, 5, 6, 8, 11) or vendor No. 923351HR (counts 3, 4, 7, 9, 10).Counts 12 through 21 charged defendant with presenting written instruments thatcontained false information to DSS by submitting vouchers again identified only ashaving vendor No. 42835XH (counts 12, 15, 16, 18, 21) or vendor No. 923351HR(counts 13, 14, 17, 19, 20). Defendant requested a bill of particulars identifying the factsunderlying each of the charges in the indictment, which the People refused toprovide.
At trial, the crux of the People's case was the testimony of a DSS special investigator,who testified over defendant's repeated objections. The investigator reviewed the schooland bus schedules of the children who attended the daycare, their parents' workschedules, the parents' applications for daycare subsidies and preapproval letters, and thework schedules of defendant and her assistant, and prepared charts listing each day thatthe daycare was open and defendant's billings for those dates. Based upon thatinformation, the investigator created charts purporting to illustrate the amounts thatdefendant allegedly "overbilled" DSS, which were admitted in evidence over defendant'sobjection. According to the investigator, defendant submitted vouchers for monies towhich she was not entitled because (1) she billed for hours when neither she nor hercertified assistant were at the daycare, and (2) she billed for hours when the childrenwere not at the daycare.
By its verdict, the jury found defendant guilty of grand larceny as charged in countone of the indictment, falsifying business records as charged in counts 5 through 11 ofthe indictment, and offering a false instrument for filing as charged in counts 15 through21 of the indictment. The jury acquitted defendant of the remaining counts of falsifyingbusiness records (counts 2 through 4) and offering a false instrument for filing (counts 12through 14).
On appeal, defendant contends that the judgment must be reversed and theindictment dismissed because, inter alia, the indictment was rendered duplicitous and/ormultiplicitous by the evidence adduced at trial. We agree. "Prosecutors and grand juriesmust steer between the evils known as 'duplicity' and 'multiplicity.' An indictment isduplicitous when a single count charges more than one offense . . . It ismultiplicitous when a single offense is charged in more than one count . . .A duplicitous indictment may fail to give a defendant adequate notice and opportunity todefend; it may impair his [or her] ability to assert the protection against double jeopardyin a future case; and it may undermine the requirement of jury unanimity, for if jurors areconsidering separate crimes in a single count, some may find the defendant guilty of one,and some of the other. If an indictment is multiplicitous it creates the risk that adefendant will be punished for, or stigmatized with a conviction of, more crimes than he[or she] actually committed" (People v Alonzo, 16 NY3d 267, 269 [2011]). Anindictment that is not duplicitous on its face may be rendered so based upon the trialevidence (see People vBennett, 52 AD3d 1185, 1186 [2008], lv denied 11 NY3d 734 [2008];People v Bracewell, 34AD3d 1197, 1198 [2006]).
Here, the People correctly concede that counts 5 through 7, 9, 15 through 17, and 19of the indictment are duplicitous and multiplicitous inasmuch as they are based on"distinct but not identifiable vouchers." Those counts are all based on the same timeperiod and the same vendor number and, according to the People, there is no way toidentify which voucher refers to which count (see generally People v Burnett,306 AD2d 947, 947-948 [2003]). In addition, the People correctly concede that theconviction of counts 11 and 21 should be reversed and those counts dismissed becausethere is no proof in the record to support the conviction of those counts. Those counts arebased on the so-called "10th voucher," which was not submitted in evidence and aboutwhich there was no testimony. Although defendant's contention with respect to counts 11and 21 is unpreserved for our review because her motion for a trial order of dismissalwas not specifically directed at that deficiency (see People v Gray, 86 NY2d 10,19 [1995]), we nonetheless reach that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]).
With respect to the remaining counts of the indictment, we agree with defendant thatcounts 8, 10, 18, and 20 of the indictment were rendered duplicitous by the trial evidence(see Bennett, 52 AD3d at 1186; Bracewell, 34 AD3d at 1198). As notedabove, the People alleged that defendant submitted vouchers for monies to which shewas not entitled because, at various dates and times, she (1) billed for hours when neithershe nor her certified assistant were at the daycare, and (2) she billed for hours when thechildren were not at the daycare. There is no basis in the record to determine, withrespect to each of those counts, whether the jury convicted defendant based upon the firstact (billing for hours when the children were watched by uncertified assistants) or thesecond act (billing for hours when the children were not at daycare), or whether certainjurors convicted defendant upon the former and others upon the latter. Thus, "it isimpossible to verify that each member of the jury convicted defendant for the samecriminal act" (People vDalton, 27 AD3d 779, 781 [2006], lv denied 7 NY3d 754 [2006], lvdenied upon reconsideration 7 NY3d 811 [2006]).
Finally, we agree with defendant that her conviction of grand larceny must also bereversed. Count one of the indictment alleges that, between October 1, 2007 and July 30,2008, defendant "stole property having a value in excess of [$3,000], to wit: a sum ofmoney, belonging to [DSS]." Under Penal Law § 155.05 (1), "[a] personsteals property and commits larceny when, with intent to deprive another of property orto appropriate the same to himself [or herself] or to a third person, he [or she] wrongfullytakes, obtains or withholds such property from an owner thereof." Larceny includes"obtaining property by false pretenses" (§ 155.05 [2] [a]). A defendantcommits larceny by false pretenses when he or she "obtain[s] possession of money ofanother by means of an intentional false material statement about a past or presentlyexisting fact upon which the victim relied in parting with the money" (People vStarks, 238 AD2d 621, 622 [1997], lv denied 91 NY2d 836 [1997]; seePeople v Churchill, 47 NY2d 151, 157-158 [1979]).
Here, the People alleged that defendant committed larceny by false pretenses bycharging for times when unlicensed assistants were watching the children in violation ofOCFS regulations, and by billing for times when the children were not receiving daycareservices. We question whether submitting vouchers for daycare services rendered by anuncertified assistant falls within the definition of larceny. OCFS's regional managertestified that, although it is a "regulatory violation" for an uncertified assistant to watchchildren at a group day care, the regulations do not state that daycare providers are notpermitted to bill for services rendered by an uncertified assistant. Indeed, the DSS specialinvestigator referred to those hours as "billable" on his charts, although unauthorized bythe regulations.
Even assuming, arguendo, that billing for services provided by an uncertifiedassistant constitutes a "wrongful[ ] tak[ing]" within the meaning of Penal Law§ 155.05 (1), we note that "[c]onduct which is wrongful in the civil contextis not necessarily 'wrongful' within the meaning of the larceny statutes" (People vFoster, 73 NY2d 596, 603-604 [1989]; see Churchill, 47 NY2d at 158). Asthe Court of Appeals explained in Foster, "[t]he courts and the Legislature havebeen reluctant to elevate civil wrongs to the level of criminal larceny . . . ,particularly when the conduct arises out of legitimate business activities where thereare often close questions as to whether the defendant acted intentionally or was merelyincompetent . . . In such cases, whenever the Legislature has found thatcertain acts performed in these contexts warrant criminal punishment, it has generallyidentified the prohibited conduct quite specifically . . . in order to protectthe truly inept or victims of spite from being branded as criminals" (73 NY2d at 604[emphasis added]).
Here, we agree with defendant that her alleged regulatory violation cannot form thebasis for criminal liability under the larceny statute. Article 6 of the Social Services Law,which governs child care facilities and the regulations promulgated thereunder (18NYCRR part 413 et seq.) set forth civil penalties for statutory or regulatoryviolations (see e.g. Social Services Law § 390 [10]; 18 NYCRR413.3 [a] [1], [4], [5]). Although 18 NYCRR 413.3 (a) (9) provides that OCFS mayrequest that the Attorney General "take such action as is necessary to collect civilpenalties, seek criminal prosecution, or to bring about compliance with anyoutstanding hearing decision or order" (emphasis added), we conclude that the referenceto criminal prosecution merely reserves OCFS's right to seek prosecution for otherwisecriminal conduct. It does not criminalize the violation of regulations relating to theproper supervision of children in group daycare (see generally People vCaswell-Massey Co., 6 NY2d 497, 501 [1959]). Thus, defendant's violation of 18NYCRR part 416 cannot supply the basis for a larceny prosecution (cf. People v KyuH. Shin, 181 Misc 2d 751, 754-755 [1999]; see generally Foster, 73 NY2d at604).
There is no question that the People's other theory of the case, that defendant billedfor services not actually rendered, would fall within the definition of larceny by falsepretenses (see e.g. People v McDonald, 215 AD2d 504, 504 [1995], affd88 NY2d 281 [1996]; see generally Churchill, 47 NY2d at 157-158;Starks, 238 AD2d at 622). The People, however, argued and produced evidencesupporting both theories of larceny at trial, and there is no way to determine whether thejury convicted defendant on the ground that she billed DSS for services she did not infact provide or on the ground that she billed DSS for services provided by unlicensedcaregivers. Because we cannot be certain whether the jury convicted defendant on thebasis of non-criminal acts, i.e., submitting vouchers to DSS for daycare provided byuncertified assistants, or whether the jurors lacked unanimity with respect to the acts forwhich she was convicted, we conclude that her conviction of grand larceny must bereversed and count one of the indictment dismissed (see generally Alonzo, 16NY3d at 269). Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen,JJ.