| People v Murray |
| 2020 NY Slip Op 04255 [185 AD3d 1507] |
| July 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Terrell L. Murray, Appellant. |
Jeffrey Wicks, PLLC, Rochester (Charles D. Steinman of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedMarch 12, 2014. The judgment convicted defendant upon a jury verdict of insurance fraud in thethird degree and falsifying business records in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofinsurance fraud in the third degree (Penal Law § 176.20) and falsifying businessrecords in the first degree (§ 175.10). The conviction arises from the filing of aninsurance claim for various items of property that were ostensibly destroyed in a residential fire,which was determined upon investigation to have been intentionally set.
Contrary to defendant's contention, Supreme Court did not commit reversible error in itsMolineux ruling. Here, the evidence of defendant's prior misrepresentation on therelevant application for insurance was properly admitted in evidence to establish his intent todefraud (see People v Berger, 155 AD2d 951, 951 [4th Dept 1989], lv denied 75NY2d 917 [1990]). We conclude that the probative value of that evidence outweighed itspotential for prejudice, and "the court's limiting instruction[s] minimized any prejudice todefendant" (People v Washington,122 AD3d 1406, 1408 [2014], lv denied 25 NY3d 1173 [2015]; see Berger,155 AD2d at 951).
Defendant's additional contention that the court erred in admitting evidence of his significantdebts and limited financial means is largely unpreserved for our review and, in any event, lacksmerit. That evidence was relevant to whether the contents of the subject claim forms were falseinasmuch as it tended to prove that defendant did not actually own and possess in his residencethe numerous expensive items of property that he claimed were destroyed in the fire, and itsprobative value was not substantially outweighed by the potential for prejudice (see generally People v Harris, 26 NY3d1, 5 [2015]). Moreover, any error in admitting that evidence is harmless inasmuch as theproof of defendant's guilt, without reference to the error, is overwhelming, and there is nosignificant probability that the jury would have acquitted defendant had it not been for the error(see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant further contends that the court erred in granting the People's request to instruct thejury on accessorial liability because doing so impermissibly introduced an alternative theory ofliability, i.e., that he acted in concert with his wife, that was not charged in the indictment asamplified by the bill of particulars. We reject that contention. "An indictment charging adefendant as a principal is not unlawfully amended by the admission of proof and instruction tothe jury that a defendant is additionally charged with acting-in-concert to commit the same crime,nor does it impermissibly broaden a defendant's basis of liability, as there is no legal distinctionbetween liability as a principal or criminal culpability as an accomplice" (People vRivera, 84 NY2d 766, 769 [1995]; see People v Duncan, 46 NY2d 74, 79-80 [1978],rearg denied 46 NY2d 940 [1979], cert denied 442 US 910 [1979], reargdismissed 56 NY2d 646 [1982]; People v Gigante, 212 AD2d 1049, 1049 [4th Dept1995], lv denied 85 NY2d 909 [1995]). We therefore conclude that " 'the jurywas properly instructed concerning both theories based upon the evidence adduced attrial' " (People v Young, 55AD3d 1234, 1235 [4th Dept 2008], lv denied 11 NY3d 901 [2008]). Contrary todefendant's contention, "the accessorial liability instruction did not introduce any new theory ofculpability into the case that was inconsistent with that in the indictment, and thus his indictmentas a principal provided him with fair notice of the charge[s] against him" (id.; seeRivera, 84 NY2d at 770-771).
Finally, we reject defendant's contention that the conviction is not supported by legallysufficient evidence. Viewing the evidence in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), and affording them the benefit of everyfavorable inference (see People v Bleakley, 69 NY2d 490, 495 [1987]), we conclude thatthere is a "valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial" (id.). Contraryto defendant's specific contention, even if he did not personally complete and sign each claimform, the evidence is legally sufficient to establish that he "cause[d] to be presented" awritten statement containing materially false information in support of a claim for paymentpursuant to an insurance policy (Penal Law § 176.05 [emphasis added]; see§ 176.20) and "cause[d] a false entry in the business records of anenterprise" (§ 175.05 [1] [emphasis added]; see § 175.10) bymeeting with the insurance company's representative and submitting to him the forms that wereto be filed on defendant's behalf (seePeople v Barto, 144 AD3d 1641, 1643 [4th Dept 2016], lv denied 28 NY3d 1142[2017]; People v Fuschino, 278 AD2d 657, 658-659 [3d Dept 2000], lv denied 96NY2d 800 [2001]; see generally Peoplev Abraham, 22 NY3d 140, 147-148 [2013]). Present—Centra, J.P., Peradotto,NeMoyer, Winslow and Bannister, JJ.