| People v Mazzeo |
| 2021 NY Slip Op 01162 [191 AD3d 1171] |
| February 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v David A. Mazzeo, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 7, 2017, which revoked defendant's probation and imposed a sentence ofimprisonment.
In April 2013, upon his plea of guilty to the crime of grand larceny in the third degree,defendant was sentenced to a five-year term of probation and ordered to pay restitution to thevictim of his crime. In May 2017, after a nine-count indictment was handed up against him,defendant was charged with violating the terms of his probation by committing additional crimes,as well as failing to make restitution payments over a period of several months. Following ahearing, County Court found that defendant knowingly and willfully violated the terms of hisprobation and, consequently, revoked defendant's probation and sentenced him to a prison termof 2
To begin, we find no merit to defendant's contention that the Assistant Attorney General whoassumed a prosecutorial role in this proceeding was without authority to do so. Although "theAttorney-General's prosecutorial authority is strictly limited to the specific statutory grants ofsuch authority" (Matter of Haggerty v Himelein, 89 NY2d 431, 435 [1997]), a districtattorney may enlist the help of an assistant attorney general in prosecuting a case by appointinghim or her as an assistant district attorney, provided that such appointment is made in accordancewith the dictates of County Law § 702 and that the district attorney retains "ultimateprosecutorial authority" over the matter (id. at 436; see People v Glanda, 5 AD3d 945, 948 [2004], lv denied 3NY3d 640 [2004], lv denied upon reconsideration 3 NY3d 674 [2004], certdenied 543 US 1093 [2005]; People v Anderson, 237 AD2d 989, 989 [1997]).Pursuant to County Law § 702, the appointment must be filed and recorded in thecounty clerk's office and the appointed assistant district attorney must take the oath of office and"perform such duties pertaining to the office as may be directed by the district attorney" (CountyLaw § 702 [1], [2]). Here, the record reflects that the Assistant Attorney Generalwas validly appointed as an Assistant District Attorney, that he took the oath of office and that hetook part in the proceeding under the control and direction of the Albany County DistrictAttorney (see County Law § 702 [1], [2]; People v Anderson, 237AD2d at 989). Thus, contrary to defendant's contention, the Assistant Attorney General did notact without authority.
Defendant also challenges County Court's determination that he violated the terms andconditions of his probation. Under the terms and conditions of his probation, which defendantsigned and acknowledged on three occasions, defendant was required to "[r]efrain fromcommitting any additional crime, offense, violation or other illegal activity" and to pay monthlyinstallments of restitution to the Probation Department. Upon review of the evidence, we agreewith County Court that the People proved, by [*2]apreponderance of the evidence, that defendant violated the above terms and conditions of hisprobation (see CPL 410.70 [3]).
Turning first to the allegation that defendant committed additional crimes, the recordestablishes that, in May 2017, defendant was charged by indictment with money laundering inthe second degree, scheme to defraud in the first degree, three counts of grand larceny in the thirddegree, grand larceny in the fourth degree, violating General Business Law § 352-c(6), offering a false instrument for filing in the first degree and criminal tax fraud in the fourthdegree. We agree with defendant that the People failed to present sufficient proof to establish, bya preponderance of the evidence, that defendant violated General Business Law§ 352-c (6). However, a preponderance of the evidence does support County Court'sdetermination that defendant violated his probation by committing the crimes of moneylaundering in the second degree, scheme to defraud in the first degree, grand larceny in the thirddegree, grand larceny in the fourth degree and criminal tax fraud in the fourth degree (seePenal Law §§ 155.30 [1]; 155.35 [1]; 190.65 [1] [b]; 470.15 [1] [b] [ii] [A];Tax Law § 1803).[FN*] Contrary to defendant's contention, suchdetermination was not based exclusively upon hearsay evidence. Although the People presentedhearsay testimony from an investigator who interviewed some of defendant's victims, testimonyfrom a tax auditor within the Department of Taxation and Finance and one of the victims, as wellas bank records evidencing wire transfers from the victims to defendant, constitutes the necessary"residuum of competent legal evidence" to support the finding that defendant violated the termsand conditions of his probation by committing additional crimes (People v Styles, 175AD2d 961, 961 [1991], lv denied 79 NY2d 923 [1992], quoting People v Machia,96 AD2d 1113, 1114 [1983]; see People v Hogan, 284 AD2d 655, 655-656 [2001], lvdenied 97 NY2d 641 [2001]).
Defendant's willful failure to make his required restitution payments over a series of monthsforms an additional, independent basis for County Court's violation finding. The record evidencedemonstrated that defendant was in arrears on his restitution payments and that he had the abilityto make "sufficient bona fide efforts legally to acquire the resources to pay" his restitutionobligations, but failed to do so (Bearden v Georgia, 461 US 660, 672 [1983]; accord People v Hakes, 168 AD3d1214, 1215 [2019]). Accordingly, upon consideration of the foregoing, there is no basis uponwhich to disturb County Court's determination that defendant violated the terms and conditionsof his probation.
Defendant's remaining contentions have been examined and found to be without merit.
Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:County Court did not make anyfinding with respect to the charge of offering a false instrument for filing in the first degree.