| People v Nunez |
| 2018 NY Slip Op 02687 [160 AD3d 1227] |
| April 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gilberto A. Nunez, Appellant. |
Miedel & Mysliwiec LLP, New York City (Florian Miedel of counsel), forappellant.
David M. Hoovler, District Attorney, Goshen (Nicholas D. Mangold of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered February 7, 2017, upon a verdict convicting defendant of the crimes of perjury in thesecond degree, offering a false instrument for filing in the first degree and making an apparentlysworn false statement in the first degree.
Defendant was charged by indictment with perjury in the second degree, offering a falseinstrument for filing in the first degree and making an apparently sworn false statement in thefirst degree based upon the allegation that he falsely stated on a pistol permit application that hehad not been terminated from the armed forces "for cause." Following a jury trial, defendant wasconvicted as charged and sentenced to an aggregate prison term of 1
[*2] We are unpersuaded by defendant'scontention that the verdict is against the weight of the evidence. To convict defendant of perjuryin the second degree and making an apparently sworn false statement in the first degree, thePeople were required to prove, insofar as is relevant here, that defendant made a false statementin his application for a pistol permit and that such statement was "made with intent to mislead apublic servant in the performance of his [or her] official functions" (Penal Law§§ 210.10, 210.40). Similarly, defendant's conviction of offering a falseinstrument for filing in the first degree required proof that the statement in defendant'sapplication was both false and made "with intent to defraud the state or any political subdivision"(Penal Law § 175.35 [1]).
The undisputed evidence at trial established that, less than eight months after enlisting in theUnited States Marines, defendant left his appointed place of duty without authorization inviolation of the Uniform Code of Military Justice. Nearly three years later, defendant wasapprehended by civil authorities and returned under guard to the Marines. Thereafter, defendantsubmitted a written request for separation from the armed forces in lieu of a trial by court martial.In that request, defendant acknowledged that he was "guilty of the offenses alleged" and that hehad been advised of the consequences and loss of benefits resulting from a discharge "underother than honorable conditions," including the deprivation of virtually all rights enjoyed by aveteran. He further acknowledged that, as a result of receiving a discharge under other thanhonorable conditions, he "may encounter substantial prejudice in civilian life in situationswherein . . . the character of discharge therefrom may have a bearing." Defendant'srequest for separation was granted, and he was formally discharged under other than honorableconditions. Upon his discharge, defendant was issued a certificate of release or discharge fromactive duty, which likewise set forth that his discharge from the Marines was under other thanhonorable conditions and was due to conduct triable by court martial. Defendant sought reviewof his discharge status approximately four years later, but the Naval Discharge Review Boarddenied the request and affirmed defendant's discharge.
Even assuming that a different verdict would have been reasonable, upon independentlyevaluating the evidence and weighing the strength of the conflicting inferences that may bedrawn therefrom (see People vDanielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d 490, 495[1987]), we cannot say that the jury failed to give the evidence the weight that it should havebeen accorded. In light of the uncontested proof that defendant's discharge was the result of hisunauthorized and unlawful leave of absence, and given the acknowledgments made by defendantin his request for separation concerning his guilt as well as the nature and consequences of adischarge "under other than honorable conditions," the jury could reasonably conclude thatdefendant falsely answered "no" to the question asking whether he had been discharged from thearmed forces for cause and that he knew this answer to be false. Further, defendant's intent tomislead and/or defraud can be readily inferred from the act itself, as well as his conduct and thesurrounding circumstances (see People v Bracey, 41 NY2d 296, 301 [1977]; People v Rodriguez, 71 AD3d 450,452 [2010], affd 17 NY3d 486 [2011]; People v Swain, 309 AD2d 1173, 1174[2003], lv denied 1 NY3d 581 [2003]; People v Montroy, 225 AD2d 913,913-914 [1996]). Accordingly, we are satisfied that defendant's convictions are supported by theweight of the evidence.
Defendant failed to preserve for our review his claim that, in imposing the sentence, CountyCourt improperly considered the murder charge of which he had been acquitted following aseparate jury trial just months earlier (see CPL 470.05 [2]; People v Hooks, 148 AD3d 930,931-932 [2017], lv denied 29 NY3d 1081 [2017]; People v Guerrero, 129 AD3d 1102, 1103 [2015], lv denied26 NY3d 968 [2015]). In any event, as we explained in a companion appeal (People vNunez, 160 AD3d 1225 [2018] [decided herewith]), the record reflects [*3]thatCounty Court "did not base its sentence on a crime of which defendant had been acquitted, butrather sentenced him based on all the relevant facts and circumstances surrounding the crime[s]of which he was convicted" (People vLipford, 129 AD3d 1528, 1531 [2015] [internal quotation marks, ellipsis and citationomitted], lv denied 26 NY3d 1041 [2015]; see People v Coleman, 151 AD3d 1385, 1388-1389 [2017], lvdenied 29 NY3d 1125 [2017]; People v Douglass, 115 AD3d 1055, 1057-1058 [2014]).
Finally, we are unpersuaded that County Court's imposition of the maximum sentence washarsh and excessive. Considering, among other things, the pattern of deceptive and fraudulentconduct reflected in defendant's current and prior convictions, we find no abuse of discretion orextraordinary circumstances that would warrant modification of the sentence in the interest ofjustice (see People v March, 122AD3d 1001, 1003 [2014]; People v Douglass, 115 AD3d at 1057-1058; People vStumbrice, 194 AD2d 931, 935 [1993], lv denied 82 NY2d 727 [1993]).
Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant was sentenced for theinstant crimes during a combined sentencing proceeding in which he was also sentenced upon hisconvictions for crimes charged under two unrelated indictments. Defendant's convictions in thosematters are the subject of two separate appeals (People v Nunez, 160 AD3d 1221 [2018] [decided herewith]; People v Nunez, 160 AD3d 1225 [2018] [decidedherewith]).