People v Basbus

People v Basbus 2009 NY Slip Op 08964 [68 AD3d 441] December 3, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Victor Basbus, Appellant.

—[*1] Mischel & Horn, P.C., New York (Richard E. Mischel of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Amyjane Rettew of counsel), for respondent.

Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered February 11, 2008, as amended April 22, 2008, convicting defendant, after a jury trial, of enterprise corruption, grand larceny in the third degree, insurance fraud in the third degree, offering a false instrument for filing in the first degree (four counts), falsifying business records in the first degree (four counts), and scheme to defraud in the first degree (two counts), and sentencing him to an aggregate term of 2 to 6 years, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility. Defendant's role in a large-scale insurance fraud enterprise was established by the testimony of defendant's accomplices, fully corroborated by other evidence, which included, among other things, recorded conversations in which defendant told undercover agents posing as patients to exaggerate their symptoms. There is also no basis for dismissal in the interest of justice.

The People's medical expert did not state an opinion as to whether defendant acted with an intent to defraud insurers, and the fact that aspects of his testimony were related to the ultimate issue of innocence or guilt did not render that testimony inadmissible (see People v Hicks, 2 NY3d 750, 751 [2004]). The challenged portions of his testimony essentially stated that there was no legitimate medical explanation for defendant's actions, and left it to the jury to determine whether defendant was guilty of the charged crimes (see People v Kanner, 272 AD2d 866, 867 [2000], lv denied 95 NY2d 867 [2000]).

We have considered and rejected defendant's remaining arguments concerning the medical expert's testimony, his challenges to background testimony by investigators, and all of his contentions concerning the court's charge. Concur—Saxe, J.P., Friedman, Acosta, Renwick and Abdus-Salaam, JJ.