| People v Bautista |
| 2015 NY Slip Op 07589 [132 AD3d 523] |
| October 20, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Vilma Bautista, Appellant. |
Dershowitz, Eiger & Adelson, P.C., New York (Nathan Z. Dershowitz ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Garrett Lynch of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered January13, 2014, convicting defendant, after a jury trial, of criminal tax fraud in the first degree,offering a false instrument for filing in the first degree and conspiracy in the fourthdegree, and sentencing her to concurrent terms of 2 to 6 years, 1 to 3 years, and one year,respectively, and restitution in the amount of $3,557,620, unanimously modified, on thelaw, to the extent of vacating the conspiracy conviction and remanding for a new trial onthat count if the People be so advised, and for further proceedings pursuant to CPL460.50 (5) as to the remaining convictions, and otherwise affirmed.
Defendant and others were charged with conspiracy to commit grand larceny in thefirst and second degrees, criminal possession of stolen property in the first and seconddegrees, and criminal tax fraud, based on allegations that they agreed to possess and sellfour paintings they did not own, retain the proceeds, and conceal the proceeds fromgovernment authorities. Defendant, among others, completed the sale of one of thosepaintings for $32 million in 2010. The paintings had been acquired by Imelda Marcosdecades earlier, when she was the First Lady of the Philippines, and allegedly shouldhave been forfeited to the people of the Philippines. Defendant spent and gave awaymillions of dollars of the proceeds but failed to report the sale on her 2010 New YorkState tax return as required by law, thereby evading payment of more than $1 million instate taxes.
The trial court erred in reading or paraphrasing approximately eight sentences froman order of the Supreme Court of the Republic of the Philippines in a proceedingcommenced by the Republic against Imelda Marcos and others, where the Philippinecourt granted summary judgment in favor of the petition, and ordered that more than$658 million held mostly in Swiss bank accounts be forfeited to the Republic. Only onesentence read by the court to the jury purported to state the law of the Philippines,namely Philippine Republic Act No. 1379, which provides that any property acquired bya public official during his or her term of public service that is "manifestly out ofproportion" to the official's public salary and any other lawful income "shall be presumedprima facie to have been unlawfully acquired." The remaining portions of the opinionread to the jury consisted of fact findings, and thus were not proper subjects of judicialnotice pursuant to CPLR 4511 (b) (see Hamilton v Miller, 23 NY3d 592, 603 [2014]).
The court implicitly applied collateral estoppel, which was inapplicable even underthe standards governing civil cases, since defendant was not a party to the Philippine caseand had no opportunity to litigate the issues therein; moreover, collateral estoppel shouldbe applied with more caution in criminal cases than in civil (see People vAguilera, 82 NY2d 23, 29-30 [1993]). The court further erred in paraphrasing theopinion without clarifying the rebuttable nature of the presumption under the Philippineslaw, and that error was compounded by the court's ruling precluding defense counselfrom addressing that point in summation. We have considered and rejected the People'sarguments that defendant's contentions regarding the Philippine opinion are unpreserved.However, we find that while the error was not harmless as to the conspiracy count, [*2]it was harmless as to the other counts, since there is nosignificant probability that defendant would have been acquitted of the latter two countsin the absence of this error (see People v Crimmins, 36 NY2d 230, 242 [1975]).Accordingly, we vacate only the conspiracy conviction.
The court properly admitted emails exchanged between two of defendant's allegedcoconspirators, her nephews, under the coconspirator exception to the hearsay rule.Contrary to defendant's argument, the People made a prima facie showing of conspiracy"without recourse to the declarations sought to be introduced" (People v BacTran, 80 NY2d 170, 179 [1992]). There was testimony indicating that one ofdefendant's nephews extensively participated in the painting sale at issue, and defendantsent $100,000 of the proceeds to him. Defendant also sent $5 million of the proceeds tothe other nephew. Although defendant notes that the court relied in part on the emails atissue, the messages were properly considered to demonstrate the nephews' conduct, suchas offering or arranging to offer certain prices and forwarding photographs of paintingsto potential buyers, rather than for the truth of the messages (see People v Salko,47 NY2d 230, 239 [1979]).
Under the state-of-mind exception to the hearsay rule (see People v Matthews, 16AD3d 135, 137-138 [1st Dept 2005], lv denied 4 NY3d 888 [2005]), thecourt properly admitted news articles and other documents, recovered in a search ofdefendant's home, concerning the Philippine government's efforts to recover artworksallegedly misappropriated by the Marcos administration. The circumstances warranted areasonable inference that defendant was aware of these documents and their contents(see People v Sutherland, 154 NY 345, 352 [1897]), establishing her motive toconceal the sale of a painting allegedly given to her by the former First Lady. Thus, theevidence tended to rebut the defense argument that defendant's failure to report herincome from the sale on her tax returns was not necessarily intentional. Contrary todefendant's argument, the People were not required to establish that defendant adoptedthe contents of the documents. Defendant's constitutional challenges to the admission ofthose documents are unpreserved, and we decline to review them in the interest ofjustice. As an alternative holding, we find them unavailing. Moreover, we find that anyerror in the admission of these materials was harmless.
We agree with the court's evaluation, after an in camera review, that the notes on aninterview with an alleged coconspirator were not Brady material. Moreover, thereis no reasonable possibility that they would have affected the outcome of the trial (see People v Fuentes, 12 NY3d259, 263 [2009]), since the alleged coconspirator presumably would have invokedhis Fifth Amendment right against self-incrimination if called by the defense.
Defendant was not deprived of a fair trial by the prosecutor's argument in summationthat she was told by a tax attorney that she needed to declare her income from the sale ofa painting. The tax attorney did not testify that he had directly so advised defendant, butrather testified that he met with defendant and one of her associates to discuss tax issuesconcerning the sale, and that the tax attorney advised the associate two weeks later ofdefendant's obligation to report the income. It was reasonable to infer that thisinformation was conveyed to defendant. In any event, any impropriety in the prosecutor'sstatement did not rise to the level of reversible error (see People v D'Alessandro,184 AD2d 114 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).
Defendant did not preserve her contentions that the court failed to follow the properprocedure in adjudicating her Batson motion, and that she was deprived of a fairtrial by the [*3]prosecutor's allegedly excessiveinterruptions of defense counsel's opening statement and summation, and we decline toreview them in the interest of justice. As an alternative holding, we find no basis forreversal. Concur—Gonzalez, P.J., Mazzarelli, Richter and Manzanet-Daniels,JJ.