| People v Vomvos |
| 2016 NY Slip Op 02118 [137 AD3d 1172] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Laura Vomvos, Respondent. |
Thomas J. Spota, District Attorney, Riverhead, NY (Michael J. Miller of counsel),for appellant.
Costantino & Costantino, Copiague, NY (Steven A. Costantino of counsel), forrespondent.
Appeal by the People from an order of the Supreme Court, Suffolk County(Camacho, J.), dated January 8, 2015, which granted that branch of the defendant'smotion which was pursuant to CPL 290.10 (1) to set aside a jury verdict convicting herof scheme to defraud in the first degree and to dismiss that count of the indictment.
Ordered that the order is reversed, on the law, that branch of the defendant's motionwhich was pursuant to CPL 290.10 (1) to set aside a jury verdict convicting her ofscheme to defraud in the first degree and to dismiss that count of the indictment isdenied, that count of the indictment and the verdict of guilt thereon are reinstated, andthe matter is remitted to the Supreme Court, Suffolk County, for sentencing on thatcount.
The defendant, a licensed real estate agent, was indicted for, among other charges,scheme to defraud in the first degree for engaging in a scheme to defraud three differentmortgage lenders in connection with a short sale of her home and the purchase ofanother. Following a jury trial, the defendant was convicted of scheme to defraud in thefirst degree and two counts of falsifying business records in the second degree.Thereafter, the Supreme Court granted that branch of the defendant's motion which wasto set aside the jury verdict convicting her of scheme to defraud in the first degree and todismiss that count of the indictment. The People appeal.
In deciding a motion to dismiss pursuant to CPL 290.10 (1), the trial court mustreview the legal sufficiency of the evidence as defined by CPL 70.10 (1), accepting thecompetent evidence as true, in the light most favorable to the People (see People v Lazaro, 125AD3d 1008, 1008 [2015]; People v Singh, 191 AD2d 731 [1993]).
In order to prove the defendant's guilt of scheme to defraud in the first degree underPenal Law § 190.65 (1) (b), the People were required to prove that thedefendant "engage[d] in a scheme constituting a systematic ongoing course of conductwith intent to defraud more than one person or to obtain property from more than oneperson by false or fraudulent pretenses, representations or promises, and so obtain[ed]property with a value in excess of one thousand dollars from one or more such persons."We agree with the People's contention that the evidence [*2]was legally sufficient to establish that the defendantengaged in a "scheme constituting a systematic ongoing course of conduct" (Penal Law§ 190.65 [1] [b]). The People established that, between March and Octoberof 2011, the defendant used another real estate agent's name on various documents inconnection with the short sale of her home and failed to follow the short sale rulesrequiring the listing of her home on the public Multiple Listing Service of Long Islanddatabase. The People further established that the defendant did so to conceal the fact that,unbeknownst to the lender who ultimately approved the short sale, she had privatelyagreed to sell her home as a short sale to a coworker for a certain price, and to improperlyretain a commission on the short sale. During that same period of time, the defendantprovided false information to another lender on a mortgage application to obtain amortgage on a new home she was purchasing to conceal the fact that her current homewas in foreclosure. The defendant's "single, unitary over-all scheme to defraud" wasdemonstrated by the common techniques, misrepresentations, and omissions of materialfacts employed in all transactions (see People v First Meridian Planning Corp., 86NY2d 608, 616-617 [1995]). The defendant's intent was readily inferable from theoverall pattern of her conduct (see People v Houghtaling, 14 AD3d 879, 881 [2005];People v Bastian, 294 AD2d 882, 883 [2002]). Also, the proof adduced amplydemonstrated that the defendant's scheme resulted in her obtaining property with a valuein excess of $1,000 (see Penal Law § 190.65 [1] [b]).
Accordingly, the Supreme Court erred in granting that branch of the defendant'smotion which was pursuant to CPL 290.10 (1) to set aside the jury verdict convicting herof scheme to defraud in the first degree and to dismiss that count of the indictment.Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.