| People v Park |
| 2018 NY Slip Op 04985 [163 AD3d 1060] |
| July 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Appellant, v Luke Park, Respondent. |
Barbara D. Underwood, Attorney General (Matthew B. Keller of counsel), New York City,for appellant.
Bruce R. Bryan, Syracuse, for respondent.
Mulvey, J. Appeal from that part of an order of the County Court of Cortland County(Campbell, J.), entered February 10, 2017, which partially granted defendant's motion to dismissthe indictment.
In July 2015, a 14-year-old was killed while operating heavy machinery at Park FamilyFarms, a farm owned in trust by defendant. The Department of Labor audited the farm inconnection with a subsequent investigation into the boy's death, in the course of which it wasdiscovered that the farm, among other things, failed to report the wages of certain employees inquarterly unemployment insurance tax returns (hereinafter NYS-45 forms), resulting in anunderpayment of employee insurance contributions. After the investigation was complete, agrand jury returned a 15-count indictment charging defendant with four counts each of falsifyingbusiness records in the first degree, offering a false instrument for filing in the first degree andwillful failure to pay unemployment insurance contributions, one count of endangering thewelfare of a child and two counts of prohibited employment of a minor. Defendant thereaftermoved to, among other things, dismiss the indictment on various grounds. County Court partiallygranted defendant's motion and dismissed the four counts of falsifying business records in thefirst degree and the four counts of offering a false instrument for filing in the first degree (counts1 through 8), finding that the evidence submitted to the grand jury was legally insufficient toestablish that defendant had knowledge of the content of the NYS-45 forms. The court alsodismissed the two counts of prohibited employment of a minor (counts 14 and 15) on [*2]the ground that the section of the Labor Law referenced therein didnot constitute a chargeable offense. This appeal by the People ensued.
"To dismiss an indictment or counts thereof on the basis of insufficient evidence before agrand jury, a reviewing court must consider whether the evidence viewed in the light mostfavorable to the People, if unexplained and uncontradicted, would warrant conviction by a petitjury" (People v Spratley, 152 AD3d195, 197 [2017] [internal quotation marks and citations omitted]; see People v Grant, 17 NY3d 613,616 [2011]). "In the context of grand jury proceedings, 'legal sufficiency means prima facie proofof the crimes charged, not proof beyond a reasonable doubt' " (People v Mills, 1 NY3d 269, 274[2003], quoting People v Bello, 92 NY2d 523, 526 [1998]; accord People vSpratley, 152 AD3d at 197). "The reviewing court's inquiry is limited to 'whether the facts, ifproven, and the inferences that logically flow from those facts supply proof of every element ofthe charged crimes,' and whether 'the [g]rand [j]ury could rationally have drawn the guiltyinference' " (People v Bello, 92 NY2d at 526, quoting People v Deegan,69 NY2d 976, 979 [1987]; see People vWaite, 108 AD3d 985, 985 [2013]).
As relevant here, "[a] person is guilty of falsifying business records in the first degree whenhe [or she] commits the crime of falsifying business records in the second degree, and when his[or her] intent to defraud includes an intent to commit another crime or to aid or conceal thecommission thereof" (Penal Law § 175.10). The crime of falsifying businessrecords in the second degree, in turn, requires proof that, with intent to defraud, a defendant"[m]akes or causes a false entry in the business records of an enterprise; . . . [o]mitsto make a true entry in the business records of an enterprise in violation of a duty to do so whichhe [or she] knows to be imposed upon him [or her] by law or by the nature of his [or her]position; or . . . [p]revents the making of a true entry or causes the omission thereofin the business records of an enterprise" (Penal Law § 175.05 [1], [3], [4]). Lastly,"[a] person is guilty of offering a false instrument for filing in the first degree when[,]. . . knowing that a written instrument contains a false statement or falseinformation, and with intent to defraud the state[,] . . . he or she offers or presents itto a public office . . . with the knowledge or belief that it will . . .become a part of the records of such public office" (Penal Law § 175.35 [1]).
The four counts each of falsifying business records in the first degree and offering a falseinstrument for filing in the first degree are based upon the underreporting of employees andwages in four quarterly NYS-45 forms submitted to the state in 2015. Testimony of three formeremployees of defendant's farm established that farm employees kept track of their own workhours and submitted them to defendant, whom they described as the "boss" who "did everything."One such former employee noted that he also reported his hours to defendant's sister, who helpedwith the farm's administrative tasks. Testimony further established that defendant paid employeeseither by cash, check or a combination of both. Two of the former employees explained thatdefendant would not pay them for all of the hours they had worked, and one of those witnessestestified that he was only on the books for the last two weeks of his employment at the farm. Oneof the former employees testified that, after the investigation had begun, defendant told him to lieto the investigators, while another testified that defendant told him not to say anything at all.
Defendant had engaged Farm Credit East to handle the farm's bookkeeping, and an employeeof that company testified that she relied on defendant for accurate information about who workedon the farm. She explained that she received time sheets by fax and would use that information toprocess payroll checks for defendant's on-the-books employees and to generate [*3]NYS-45 forms. An engagement agreement executed between FarmCredit East and the farm, signed by defendant, states, "I understand that I am solely responsiblefor the accuracy of the payroll information supplied by me to Farm Credit [East.]. . . I also understand and agree that if Farm Credit [East] will be filing payroll taxreturns . . . it is my responsibility to review and approve the returns." The FarmCredit East employee testified that certain farm employees had not been included on the fourNYS-45 forms submitted in 2015, and a Department of Labor auditor testified that the farm owedadditional unemployment insurance contributions as a result of its failure to report certainemployees. Although the NYS-45 forms were submitted electronically, the grand jury was showntwo amended NYS-45 forms for the first and second quarters of 2015 that defendant hadpersonally signed, wherein defendant certified that the returns were "to the best of [his]knowledge and belief true, correct, and complete." The NYS-45 forms for the first two quartersof 2015 indicate that the farm had four employees, the form for the third quarter lists sixemployees and the form for the fourth quarter lists 10 employees, suggesting that defendant putmore employees on the books after the investigation and the audit commenced.
Viewed most favorably to the People, we find that the evidence before the grand juryprovided a prima facie case of falsifying business records in the first degree and offering a falseinstrument for filing in the first degree. Although there was no proof that defendant himselfcompiled the relevant time sheets or submitted them to Farm Credit East, the evidenceestablished that employees reported their hours directly to defendant—who regularly paidthem in cash off the books—and that defendant was solely responsible for the accuracy ofthe payroll information, personally certified the accuracy of two amended NYS-45 forms andinstructed one of his employees to lie about the number of hours he worked. From this evidence,the grand jury could have rationally inferred that defendant played a role in providing payrollinformation to Farm Credit East or, at the very least, knew that the information contained withinthe relevant forms was not accurate (see People v Mikuszewski, 73 NY2d 407, 414-415[1989]; cf. People v Burt, 246 AD2d 919, 920-921 [1998], lv denied 91 NY2d1005 [1998]). Such evidence likewise supports the logical inference that defendant acted with theintent to defraud the state of unemployment insurance contributions. Because the grand jurycould have rationally drawn the inference of guilt from this proof, the fact " '[t]hat other,innocent inferences could possibly be drawn from the facts is irrelevant' " (People vJensen, 86 NY2d 248, 253 [1995], quoting People v Deegan, 69 NY2d at 979;accord People v Bello, 92 NY2d at 526; People v Spratley, 152 AD3d at 200).Counts 1 through 8 of the indictment must, therefore, be reinstated.
County Court likewise erred in dismissing counts 14 and 15 of the indictment. It iswell-established that an "indictment is jurisdictionally defective only if it does not effectivelycharge the defendant with the commission of a particular crime" (People v Iannone, 45NY2d 589, 600 [1978]; see People vFranklin, 146 AD3d 1082, 1083-1084 [2017], lv denied 29 NY3d 948 [2017])."[W]here an indictment count incorporates by reference the statutory provision applicable to thecrime intended to be charged, it has been repeatedly held that this is sufficient to apprise [a]defendant of the charge and, therefore, renders the count jurisdictionally valid" (People v Brown, 75 AD3d 655,656 [2010] [internal quotation marks and citation omitted]; accord People v Williams, 155 AD3d 1253, 1254 [2017], lvdenied 31 NY3d 1089 [2018]; People vGriswold, 95 AD3d 1454, 1455 [2012], lv denied 19 NY3d 997 [2012]). Here,counts 14 and 15 of the indictment each begin by accusing defendant of the crime of prohibitedemployment of a minor in violation of Labor Law § 145, which provides that aknowing violation of a provision of article 4 of the Labor Law is punishable by a misdemeanor.While County Court correctly noted that Labor Law § 145 does not state asubstantive offense, each [*4]count then goes on to specify theparticular section of article 4 of the Labor Law which defendant is alleged to have violated, aswell as the conduct forming the basis of the charges. This was more than sufficient to providedefendant with fair notice of the charges against him (see People v Williams, 155 AD3dat 1254; People v Binns, 82 AD3d1449, 1450 [2011]; People v Brown, 75 AD3d at 656).
Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the order is modified, onthe law, by reversing so much thereof as partially granted defendant's motion and dismissedcounts 1 through 8, 14 and 15 of the indictment; motion denied in its entirety and said countsreinstated; and, as so modified, affirmed.