| People v Guldi |
| 2017 NY Slip Op 05459 [152 AD3d 540] |
| July 5, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v George O. Guldi, Appellant. |
George O. Guldi, Marcy, NY, appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray, Grazia DiVincenzo,Alfred J. Croce, and Edward A. Bannan of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County (J.Doyle, J.), rendered March 21, 2011, convicting him of grand larceny in the second degree andinsurance fraud in the third degree, upon a jury verdict, and imposing sentence, and (2) ajudgment of the same court, rendered August 31, 2011, convicting him of grand larceny in thefirst degree (23 counts), grand larceny in the second degree (11 counts), and scheme to defraud inthe first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment rendered March 21, 2011, is reversed, on the law, and the matteris remitted to the County Court, Suffolk County, for a new trial; and it is further,
Ordered that the judgment rendered August 31, 2011, is affirmed.
In a judgment rendered March 21, 2011, after a jury trial, the defendant was convicted ofgrand larceny in the second degree and insurance fraud in the third degree in connection with hiswrongful taking of insurance proceeds after his house was damaged by fire and certainstatements that he provided to the insurer, American International Insurance Company(hereinafter AIG). In a separate proceeding, related to a fraudulent mortgage scheme, thedefendant pleaded guilty to grand larceny in the first degree (23 counts), grand larceny in thesecond degree (11 counts), and scheme to defraud in the first degree, which resulted in ajudgment rendered August 31, 2011. The defendant appeals from both judgments.
With regard to the judgment rendered March 21, 2011, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt of grand larceny in the seconddegree beyond a reasonable doubt (see Penal Law §§ 155.00 [5];155.05, 155.40 [1]; cf. People v Bombard, 270 AD2d 648, 648-649 [2000]). Thedefendant's contention that the evidence was legally insufficient to support his conviction ofinsurance fraud in the third degree is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d484, 492 [2008]) and, in any event, without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d at 621), we find that it waslegally sufficient to establish the defendant's guilt of that crime beyond a reasonable [*2]doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt on the count of insurance fraud in the third degree was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Where a "defendant's guilt was proven beyond a reasonable doubt at trial, there can be noappellate review of the issue of whether a prima facie case was presented to the grand jury" (People v Folkes, 43 AD3d 956,957 [2007]; see CPL 210.30 [6]; People v Quinn, 131 AD3d 710, 711 [2015]; People v Capehart, 61 AD3d 885,886 [2009]).
However, a new trial is required because the County Court erred in denying the defendant'sfor-cause challenge to prospective juror No. 16, who was an employee of AIG.
A prospective juror may be challenged for cause on several grounds, including that theprospective juror bears a relationship to the person allegedly injured by the crime charged that is"of such [a] nature" as to preclude him or her from rendering an impartial verdict (CPL 270.20[1] [c]). Such a relationship is referred to as an "implied bias," and requires "automatic exclusionfrom jury service regardless of whether the prospective juror declares that the relationship willnot affect [his or] her ability to be fair and impartial" (People v Furey, 18 NY3d 284, 287 [2011]; see People vBranch, 46 NY2d 645, 650 [1979]). "The risk of prejudice arising out of the closerelationship is so great that recital of an oath of impartiality could not convincingly dispel thetaint and creates the perception that the accused might not receive a fair trial before an impartialfinder of fact. For this reason, [the Court of Appeals advises] trial courts to exercise caution inthese situations by leaning toward disqualifying a prospective juror of dubious impartiality"(People v Furey, 18 NY3d at 287 [brackets, ellipses, internal quotation marks and citationomitted]). Not all relationships between a prospective juror and a complainant or other interestedparty require disqualification for cause as a matter of law, and thus, the frequency of contact andnature of the relationship must be considered (see People v Furey, 18 NY3d at 287).
Here, during the first round of jury selection, prospective juror No. 16 indicated that sheworked for AIG. Upon inquiry by the defendant, the prospective juror explained that her jobinvolved analyzing the financial policies for three divisions at AIG: "[a]sset management,financial services, and domestic life." We note that, in response to the defendant's questions, theprospective juror did not provide a completely unequivocal assurance that she could be fair andimpartial. She thought that she could be fair and impartial, but conceded that there "may be" aconflict of interest from the defendant's perspective, and that it might be better if she were on adifferent case so as to enable the defendant to feel "comfortable" that he "wouldn't be prejudicedin any way." Thereafter, the County Court denied the defendant's for-cause challenge withoutasking the prospective juror any questions about her employment at AIG or how it might affecther ability to serve as a juror, notwithstanding that the court had an obligation to try anddetermine "[a]ll issues of fact or law arising on the challenge" (CPL 270.20 [2]).
Contrary to the County Court's determination, the prospective juror's professionalrelationship with AIG, her employer, rendered her unsuitable for jury service and necessitated herremoval for cause (see CPL 270.20 [1] [c]; People v Furey, 18 NY3d 284 [2011]; People v Branch, 46NY2d 645 [1979]; cf. People vHamilton, 127 AD3d 1243, 1246 [2015]). We note that AIG drafted and funded theinsurance check underlying several counts of the indictment, and AIG was the namedcomplainant in the count alleging insurance fraud in the third degree. Under all thecircumstances, there was a considerable risk that the prospective juror could unwittingly giveundue credence to witnesses from AIG and her service would give rise to the perception that thedefendant did not receive a fair trial (see People v Furey, 18 NY3d at 288; cf. People v Greenfield, 112 AD3d1226, 1228 [2013]).
As the defendant peremptorily challenged prospective juror No. 16 and his peremptorychallenges were exhausted before the selection of the jury was complete, the County Courtcommitted reversible error when it denied the defendant's challenge for cause to the [*3]prospective juror (see CPL 270.20 [2]; People v Cahill, 2 NY3d 14, 49-50[2003]; People v Lynch, 95 NY2d 243, 248 [2000]; cf. People v Libardi, 12 AD3d 534, 534 [2004]).
The defendant's contention that Suffolk County lacked jurisdiction with respect to the countof grand larceny in the second degree and his contention that AIG improperly acted as an agent ofthe District Attorney of Suffolk County are without merit.
In light of our determination, we need not reach the defendant's remaining contentions withregard to the judgment rendered March 21, 2011.
With regard to the judgment rendered August 31, 2011, the record sufficiently demonstratesthat the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Sanders, 25 NY3d337 [2015]). Moreover, contrary to the defendant's contention, his plea of guilty was notinduced by the County Court's explicit promise that he would receive a lesser sentence to runconcurrently with the sentence previously imposed with respect to the judgment rendered March21, 2011, as the court clearly informed him that the plea would stand regardless of whether thepreviously imposed sentence was vacated. Accordingly, the defendant is not entitled to vacatur ofhis plea (see People v Kalinowski,84 AD3d 1739, 1741 [2011]; seegenerally People v Rowland, 8 NY3d 342, 345 [2007]).
The defendant's claim that the indictment was improperly severed is nonjurisdictional anddid not survive his plea of guilty or appeal waiver (see People v Guerrero, 28 NY3d 110, 117 [2016]; see also People v Palladino, 140 AD3d1194, 1195 [2016]).
Moreover, the defendant's claim that the County Court improperly denied his application foran order appointing a special prosecutor was forfeited by his plea and waiver of the right toappeal (see People v Callahan, 80 NY2d 273, 280 [1992]; People v Reiblein, 200AD2d 281 [1994]).
The defendant's waiver of the right to appeal did not impair his ability to obtain appellatereview of his constitutional speedy trial claim (see People v Callahan, 80 NY2d at 282).However, the defendant was not denied his constitutional right to a speedy trial (see People vTaranovich, 37 NY2d 442, 445 [1975]). Chambers, J.P., Miller, Maltese and Duffy, JJ.,concur.