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Charges against an Assemblyman are upheld

The defendant is a New York State Assemblyman and a chairman of the Executive Committee of the Kings County Democratic Party (KCDC). As an Assemblyman he routinely traveled from Brooklyn to Albany and back on New York State Assembly business, and as chairman of the KCDC, he was provided with a car and a credit card by which the KCDC paid all of his car-related expenses, including gas, oil and routine maintenance. Thus, the defendant submitted vouchers by which he sought and received a mileage allowance for the miles he had driven to and from Albany.

The defendant was later indicted by the grand jury of Kings County and charged with one count of grand larceny in the third degree (Penal Law ยง 155.35) and 76 counts of offering a false instrument for filing in the first degree (Penal Law ยง 175.35).

According to the prosecution, by receiving the mileage allowances sought in the vouchers, the defendant stole money from the State of New York by falsely claiming to have incurred the expenses which the allowances were meant to reimburse, and that when he certified on the vouchers that he incurred those expenses and was due a balance that included the mileage allowances, the certification on each voucher constituted a false statement.

The grand larceny count alleged that between 27 May 1999 and 29 November 2002, pursuant to a common scheme and plan, the defendant stole more than $3,000 from the State of New York by seeking and obtaining reimbursement for travel expenses that the defendant claimed to have incurred in Kings County and other counties by means of false pretenses in written instruments that the defendant offered for filing. The 76 false filing counts concern those written instruments, 76 travel vouchers (formally called NYS Assembly Member Per Diem Expenses Reimbursement Vouchers), which the counts alleged the defendant offered for filing with the intent to defraud the State, knowing that each contained a false statement and false information concerning travel expenses that the defendant purported to incur in Kings and other counties.

The defendant then moved, in an omnibus motion, for an inspection of the grand jury minutes and dismissal or reduction of the charges in the indictment.

According to the defendant, the evidence before the grand jury was legally insufficient and that the grand jury proceedings were defective; that the indictment itself is defective and that there are jurisdictional and legal impediments to his conviction for the crimes charged.

The defendant then also moved to dismiss the indictment in the interests of justice, and for an order directing the People to provide him with a bill of particulars pursuant to CPL 200.95, and for discovery and inspection under CPL 240.40.

The defendant’s motion for the court to inspect the grand jury minutes was granted; the court has inspected and reviewed the grand jury minutes. The defendant’s motion for disclosure of the grand jury minutes to him has previously been granted to the extent that, with minor redactions, the testimony of two witnesses has been provided to him. The motion to disclose the remainder of the grand jury minutes was denied since that disclosure is unnecessary for the resolution of the defendant’s motions.

On the issue of Sufficiency of the Grand Jury Evidence:

The evidence presented to the grand jury was sufficient to support the charges contained in the indictment, and the defendant’s motion to dismiss the indictment, or, in the alternative, to reduce the charges on this ground was denied.

Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of the crime charged and the defendant’s commission of it. In determining whether grand jury evidence is legally sufficient, the court must determine whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury. Even when assessing the sufficiency of the evidence in a case in which it is entirely circumstantial, the court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes. The fact that innocent inferences could possibly be drawn is irrelevant, as long as the grand jury could rationally draw the inference of guilt.

First, indeed, the grand jury could find that by submitting the vouchers, the defendant knowingly, and with intent to defraud, sought and received payment for mileage allowances for driving expenses that he did not actually incur, and thus stole money from the State of New York. The grand larceny count properly aggregates the amount of money the defendant obtained from the vouchers submitted between 27 May 1999 and 29 November 2002, on the theory, specifically alleged in the indictment, that the larceny occurred pursuant to a common scheme and plan. Such aggregation is permissible even though the successive takings extended over a long period of time.

Second, an indictment need not specify that a defendant committed a larceny in any particular manner unless the theory of prosecution is that the larceny was from a person or was committed by extortion. In particular, when the theory of the prosecution is that the larceny was committed by false pretenses, the indictment need not so specify.

Third, it is unnecessary for a complainant to lodge a complaint or appear before the grand jury in order to sustain a larceny charge. Appellate courts have frequently upheld a defendant’s conviction for robbery, that is, for forcible stealing, even though the complainant did not testify against the defendant, whether because the complainant sustained severe injury in the commission of the robbery; had been killed during the robbery; was otherwise unavailable to testify; or simply failed to testify without explanation. Grafting such a requirement on a larceny prosecution in which the alleged victim is the State of New York rather than an individual would be particularly inappropriate, since a government entity can only complain through a representative individual, who does not have a personal stake in the loss alleged.

Fourth, from the evidence that the car the defendant drove to and from Albany was leased for him by the KCDC, that he paid the expenses associated with driving the car with the KCDC credit card, and that he approved the payment of the credit card account bills that included those expenses, the grand jury could infer that, when he certified on the vouchers that he had incurred the expenses for which he was seeking reimbursement and that the amount he sought was actually due and owing, he knew the certification was false and he was seeking reimbursement under false pretenses.

Fifth, the crime of offering a false instrument for filing in the first degree is committed by a person who offers to a public office or public servant a written instrument for filing, knowing that the instrument contains a false statement or false information, with intent to defraud the State or another governmental entity. Here, each of the counts with which the defendant is charged refers to a particular voucher the defendant filed seeking reimbursement for travel expenses, including payment of the mileage allowance for travel to and from Albany. Clearly, the grand jury could find that when the defendant certified that he incurred the expenses for which he sought payment through each voucher, and was due an amount that included the mileage payments sought in the voucher, the defendant knew that he had not actually incurred the expenses for which he sought the mileage allowances, and that the amount each voucher sought was not actually the amount due and owing.

Sixth, it was for the grand jury to determine what it meant to “incur” an expense, and when payment was “due and owing,” as those terms were used in the certifications the defendant signed. When those words are considered in the context of the vouchers’ purpose, reimbursing Assembly Members for their actual traveling expenses, as provided in the New York Constitution, or for their actual and necessary transportation expenses, as provided in Legislative Law, and in the context of the evidence before the grand jury concerning what the defendant knew about how the cars he drove and the expenses of operating them were paid for, the grand jury could subject the words to a reasonable and definite interpretation, and find that the defendant’s certifications were literally and knowingly false.

On the issue of Propriety of the Grand Jury Proceedings, Expert Testimony:

A grand jury proceeding is defective when its integrity has been impaired and prejudice to the defendant may result. Dismissal of an indictment is an exceptional remedy warranted only where a defect in the grand jury proceedings created a possibility of prejudice. Although the statutory test does not require that a defendant actually suffer prejudice in order for a court to find that the proceedings were impaired, the test to determine impairment is, nonetheless, very precise and very high. An indictment will not be dismissed because of every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake. Dismissal is appropriate only where there has been prosecutorial wrongdoing, fraudulent conduct or errors that potentially prejudice the ultimate decision reached by the grand jury.

First, the defendant’s generalized objections to the method and manner of the grand jury proceedings, and to the instructions given to the grand jury, are without merit. In particular, the minutes of the proceedings reveal that a quorum of grand jurors was present when testimony was taken and at the time the Assistant District Attorney instructed the grand jury on the law, and that it was instructed that only those grand jurors who had heard all of the evidence could participate in voting on the matter. The legal instructions given to the grand jury were not defective within the meaning of CPL 210.35.

Second, the defendant challenges the expert testimonies offered in evidence against him. As a rule, in any case, because a grand jury has ordinarily fulfilled its function when it has issued an indictment upon evidence that is legally sufficient to establish that the accused committed a crime, a prosecutor is not required to instruct the grand jury with the same degree of precision that is required when a petit jury is instructed on the law. Thus, a prosecutor’s instructions to the grand jury are sufficient if the District Attorney provides the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime. It is only when the prosecutor’s instructions were so incomplete or misleading that they substantially undermine this essential function, that it may fairly be said that the integrity of that body has been impaired. In some cases, there may be conflicting evidence on an important question of fact upon which an expert offered an opinion. In such a case, instructing the grand jury concerning its freedom to accept or reject the opinion of an expert witness may be important to insure that the grand jury serves its function to determine independently whether the People have met their burden of proof. Here, there was no such conflict in the evidence for the grand jury to resolve. The omission of an instruction concerning the weight, if any, to be accorded an expert’s testimony was not of such magnitude as to prejudice the defendant’s interests, to the extent that the integrity of the Grand Jury was impaired thereby. It is highly unlikely that giving the grand jury an instruction that they could reject the expert testimony they heard would have changed the grand jury’s determinations.

Third, while the defendant correctly observed that the prosecutor announced that he was admitting documents into evidence before laying a sufficient foundation for doing so, he did thereafter ask questions which established their admissibility as business records, and did so before posing any questions regarding their substance. Proceeding in this manner, while perhaps technically incorrect, neither impaired the integrity of the proceedings nor created any likelihood of prejudice to the defendant.

On the issue of Defective Allegations in the Indictment:

Allegations in an indictment that track the language of the statute defining the offense charged are legally sufficient. Specific reference to the name and section number of a statute alleged to have been violated constitutes jurisdictionally sufficient allegations of all the elements of a crime.

On the issue of Geographical Jurisdiction:

A defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise. Because jurisdiction is not an element of a crime, the People must only establish in the grand jury by a preponderance of the evidence that the county in which the crime is being prosecuted has jurisdiction over the matter. The People must establish that either the crime was committed in the county in which the crime is being prosecuted, or that jurisdiction lies under one of the statutory exceptions.

Here, while there was no evidence presented in the grand jury concerning where the defendant completed the reimbursement vouchers, the grand jury did hear that the vouchers were submitted in Albany and that the defendant received payment on them there. Regardless, there was substantial evidence before the grand jury of conduct in Kings County.

On the issue of Separation of Powers

It is hard to imagine how submitting a voucher for reimbursement of travel expenses could ever be considered an integral part of the deliberative and communicative processes of legislators considering proposed legislation or other matters which the constitution places within the jurisdiction of either House. A strained argument might be made that a Member’s presence in Albany is essential to those deliberative and communicative processes, and thus that a prosecution which challenges a Member’s reimbursement for expenses incurred in traveling there violates the Speech or Debate Clause. But such an argument goes too far, since there is nothing legislative about submitting a travel voucher, and it cannot be construed as speech or debate that the clause is meant to protect. Similarly, the independence of individual legislators is in no way diminished by prosecuting a Member of the Assembly for allegedly seeking and obtaining reimbursement for travel expenses he did not actually incur. As the Court of Appeals has observed, no matter how far the immunity of the Speech or Debate Clause may extend under the State Constitution, it cannot be said that it was intended to provide a sanctuary for legislators who would defraud the State.

On the issue of Dismissal in the Interest of Justice:

A court may dismiss an otherwise valid indictment in the interest of justice when such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment would constitute or result in injustice. In rendering its determination, the court must engage in a sensitive balancing of the interests of the individual and the People, and review the facts of the case and evaluate them in light of the criteria set forth in the law. While the court is obligated to set forth its findings, the statute does not compel catechistic on-the-record discussion of items to indicate that in fact all applicable items have been considered. A court should find that some compelling factor, consideration or circumstance exists and that the indictment should be dismissed, however, only in the most exceptional circumstances.

Here, the dismissal of the indictment in the interest of justice is not appropriate. There was compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon the indictment would constitute or result in injustice. Thus, the defendant’s motion to dismiss on this ground was denied.

On the issue of Discovery and Bill of Particulars:

Under the rules, prior to trial, the People are to inform the defendant and the trial court what, if any, uncharged criminal, vicious or immoral conduct they will seek to introduce into evidence for a determination of its admissibility. A Sandoval and/or Ventimiglia hearing will be conducted immediately prior to trial. The People are constantly reminded of their continuing obligation to disclose to the defendant any exculpatory evidence in their possession pursuant to the case of Brady v. Maryland which was decided by the court in 1963, and its progeny, and that they are obligated to provide it to the defendant, if it exists, in a timely manner.

Here, the People have adequately responded to the defendant’s demands in their answer and, at the request of the court, at oral argument of the motion, and if, there is still some discovery to which the defendant is entitled to and which the People have failed to provide, the defendant may renew the motion.

Kings County Criminal Defense Lawyers like our Kings County Larceny Lawyers, among others, are the experts at Stephen Bilkis & Associates who can help you when it comes to cases like the above. If you happen to be involved in one, you must contact us immediately. Free consultations are available at our firm.

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