| People v Frumusa |
| 2015 NY Slip Op 09718 [134 AD3d 1503] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLawrence P. Frumusa, Also Known as John Doe, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered September 30, 2011. The judgment convicted defendant, upon a jury verdict, ofgrand larceny in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of grand larceny in the second degree (Penal Law § 155.40 [1]).Defendant contends that he was deprived of a fair trial because County Court improperlyadmitted as Molineux evidence a civil contempt order (hereafter, contempt order)finding that certain companies owned solely by defendant (hereafter, defendant'sbusinesses) had failed to obey the terms of an earlier order. We reject that contention.The earlier order directed defendant's businesses to turn over all monies they hadreceived as a result of defendant diverting credit card proceeds from Webster HospitalityDevelopment LLC (WHD), a company in which defendant held majority ownership andwhich was in receivership, to undisclosed bank accounts maintained for defendant'sbusinesses. Contrary to defendant's contention, the contempt order does not constitute afinding that defendant stole the money; rather, it demonstrates that defendant's businessesfailed to abide by the earlier order to return money to WHD and to provide certaindocumentation to the receiver. We thus conclude that the contempt order was properlyadmitted as relevant evidence of defendant's intent to deprive WHD of the money by"withhold[ing] it or caus[ing] it to be withheld from [WHD] permanently"(§ 155.00 [3]; see People v Molineux, 168 NY 264, 293 [1901]).Moreover, we note that "[l]arcenous intent . . . 'is rarely susceptible of proofby direct evidence, and must usually be inferred from the circumstances surrounding thedefendant's actions' " (People v Brown, 107 AD3d 1145, 1146 [2013], lvdenied 22 NY3d 1039 [2013]). Here, the contempt order had significant probativevalue inasmuch as it showed that defendant's conduct did not merely constitute poorfinancial management but, rather, that defendant, through his businesses, intended todeprive WHD of the diverted money permanently. The court therefore properlyconcluded that "the probative value of the evidence outweighed its prejudicial effect" (People v Smith, 129 AD3d1549, 1549 [2015], lv denied 26 NY3d 971 [2015]).
We reject defendant's contention that the court improperly limited hiscross-examination of a witness with the minority ownership of WHD. "It is well settledthat [t]he scope of cross-examination is within the sound discretion of the trial court" (People v Bryant, 73 AD3d1442, 1443 [2010] [internal quotation marks omitted], lv denied 15 NY3d850 [2010]). Here, "the record establishes that defendant was given wide latitude incross-examining the witness in question, and the court limited the cross-examination inmerely a single instance that could not have affected the outcome of the trial"(id.). Contrary to defendant's further contention, we conclude that he receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147[1981]).
[*2] Finally, we reject defendant'scontention that the court abused its discretion in denying his request for an adjournmentof sentencing to permit his newly-retained counsel additional time to prepare. "It is wellestablished that '[t]he granting of an adjournment for any purpose is a matter restingwithin the sound discretion of the trial court' " (People v LaCroce, 83 AD3d1388, 1388 [2011], lv denied 17 NY3d 807 [2011], quoting People v Diggins, 11 NY3d518, 524 [2008]), and " '[t]he court's exercise of discretion in denying arequest for an adjournment will not be overturned absent a showing ofprejudice' " (People vAikey, 94 AD3d 1485, 1486 [2012], lv denied 19 NY3d 956 [2012]).Defendant made no such showing here.
All concur except Centra and Lindley, JJ., who dissent and vote to reverse inaccordance with the following memorandum.
Centra and Lindley, JJ. (dissenting). We respectfully dissent and conclude thatCounty Court erred in admitting in evidence a contempt order issued by a Supreme CourtJustice. We would therefore reverse the judgment of conviction and grant a new trial.Defendant was the majority owner of Webster Hospitality Development LLC (WHD), acompany that developed and operated a hotel. The minority owner of WHD filed a civilsuit against defendant in Supreme Court, resulting in the court appointing a temporaryreceiver to manage WHD. Defendant was charged with grand larceny in the seconddegree (Penal Law § 155.40 [1]) based on the allegation that he stole inexcess of $50,000 from WHD between December 1, 2008 and June 15, 2009, while itwas in receivership. Specifically, the People alleged that defendant directed AmericanExpress credit card proceeds into a bank account that defendant had opened for WHD atPNC Bank, an account of which the receiver had no knowledge. Once the funds were inthat account, defendant transferred the funds to the accounts of other companies ownedsolely by defendant (hereafter, defendant's businesses), also at PNC Bank.
By order issued on July 27, 2009, which was after the time period set forth in theindictment herein, Supreme Court ordered defendant's businesses to turn over all moniesdeposited into WHD's account at PNC Bank. By notice of motion dated August 20,2009, WHD moved for an order of contempt for the failure of defendant's businesses tocomply with that order. Defendant's businesses did not submit any papers in oppositionto the motion, and did not appear on the return date thereof. Supreme Court granted themotion and issued a final order adjudging defendant's businesses in contempt (hereafter,contempt order). The contempt order provided that defendant's businesses "are adjudgedto be in contempt of Court in having willfully and deliberately failed to obey the terms ofthe Order in that they have converted $249,196.28 of WHD's monies and refusedto comply with the express directions in the Order to pay over to WHD all moniesreceived by each of them, or paid on their behalf, from a WHD account . . .[;] and it is further determined that [the conduct of defendant's businesses] wascalculated to and actually did defeat, impair, impede and prejudice the rights andremedies of WHD" (emphasis added).
The People's Molineux notice sought to introduce in evidence the contemptorder, arguing that it demonstrated defendant's intent to steal. The People argued thatthey were not introducing the order "to suggest that just because a judge found. . . defendant's [businesses] . . . in contempt of Court, that theyshould convict [defendant]." Over defendant's objection, the court granted the People'sapplication. The contempt order was admitted in evidence at trial, and witnesses testifiedthat defendant and his businesses failed to comply with the contempt order and had notturned over any funds that were transferred into the PNC Bank accounts. Thecourt gave the jury no limiting instruction with respect to that evidence.
It is well settled that "evidence of a defendant's prior bad acts may be admitted toprove the crime charged when the evidence tends to establish," inter alia, intent (People v Denson, 26 NY3d179, 185 [2015]; see People v Molineux, 168 NY 264, 293 [1901]). Weconclude that the contempt order did not constitute Molineux evidence. Thecontempt order and related testimony involved defendant's conduct, through hisbusinesses, that occurred after the crime he was charged with. In certain circumstances,bad acts or crimes that are committed after the crime charged are admissible (seePeople v Ingram, 71 NY2d 474, 479-480 [1988]). The evidence here, however, wasnot "[p]roof of defendant's conviction of a subsequent unrelated crime"(People v Holmes, 112 AD2d 739, 739 [1985], lv denied 66 NY2d 920[1985] [emphasis added]; see Ingram, 71 NY2d at 479-480). Rather, it wasevidence involving conduct of defendant, through his businesses, that was related to thesame crime with which defendant was charged. Indeed, the contempt order arosefrom an order directing defendant's businesses to turn over the very funds that the Peopleaccused defendant of stealing. Moreover, the contempt order was issued in anuncontested civil [*3]proceeding, where the lesser burdenof proof of clear and convincing evidence applied (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]).
In any event, even if the contempt order constituted Molineux evidence, weconclude that the court abused its discretion in admitting it in evidence because itsprobative value did not outweigh its prejudicial effect (see People v Drake, 94 AD3d1506, 1508 [2012], lv denied 20 NY3d 1010 [2013]). Inasmuch as thecontempt order stated that defendant, through his businesses, "converted" the funds atissue to the detriment of the rights and remedies of WHD, the jury had before it adocument that essentially constituted, in the context of the other evidence presented attrial, a judicial finding of defendant's larcenous intent. The prejudicial effect on thecharge herein against defendant was nothing other than obvious and extreme. In addition,as noted above, the court did not give any limiting instruction to the jury to minimize anyprejudicial effect (cf. People vGraham, 117 AD3d 1584, 1584-1585 [2014], lv denied 23 NY3d 1037[2014]).
Moreover, the prosecutor concluded his summation by drawing the jury's attention tothe contempt order, and the prosecutor urged the jurors to convict inasmuch as aSupreme Court Justice "had tried [to hold him responsible] by trying to fine him and thatdidn't work." He further stated that Supreme Court had "issued order after order afterorder trying to hold him in contempt. Now you can issue that decision. You can hold himresponsible for this, and you can find him guilty of Grand Larceny in the SecondDegree." Thus, the prosecutor sought to have the jury use the contempt order for the verypurpose which he had earlier said was not the purpose of the Molineuxapplication, i.e., "to suggest that just because a judge found . . . defendant's[businesses] . . . in contempt of Court, that they should convict him." In ourview, defendant was denied a fair trial by cumulative effect of the admission in evidenceof the contempt order, the testimony regarding that contempt order, and the prosecutor'sreferences to the contempt order on summation. Present—Scudder, P.J., Centra,Peradotto, Lindley and Valentino, JJ.