People v Norman
Annotate this CaseDecided on November 16, 2004
Supreme Court, Kings County
THE PEOPLE OF THE STATE OF NEW YORK
against
CLARENCE NORMAN, JR., Defendant.
CLARENCE NORMAN, JR., 6435/03
Martin Marcus, J.
The defendant in this case is a New York State Assemblyman and a member of the Executive Committee of the Brooklyn Thurgood Marshall Democratic Club ("the Club"). The Committee to Re-Elect Assemblyman Clarence Norman, Jr. ("the Committee") is a political organization that was formed to receive contributions and make expenditures on behalf of the defendant's re-election campaign. According to the evidence before the grand jury, the defendant came into possession of a check dated October 30, 2001, in the amount of five thousand dollars, drawn on the Club's account. Although the check was payable to the Committee, the defendant did not give it to the Committee's treasurer or inform her that he had received it, and instead deposited the check in his personal checking account. Unaware that the defendant had received the check, the treasurer did not list it in the January 2002 Periodic Report ("the January Report") she was required to file with the New York State Board of Elections ("the Board of Elections").
Based on this evidence, the Grand Jury of Kings County returned a seven count indictment against the defendant. The first count charges him with Grand Larceny in the Third Degree [Penal Law §155.35], and alleges that he stole more than three thousand dollars from the Committee. The second and third counts charge him with Falsifying Business Records in First Degree [Penal Law §175.10], and allege that, with intent to defraud, including the intent to aid and conceal the commission of a crime, the defendant prevented the making of a true entry, and caused the omission of a true entry in the records of the Committee (count two) and of the Board of Elections (count three). The fourth count charges him with Offering a False Instrument for Filing [Penal Law §175.35], and alleges that he presented the January Report to the Board of Elections, knowing the report contained "a false statement and false information" and with intent to defraud the Board. The fifth, sixth and seventh counts charge him with criminal violations of the Election Law, see Election Law § 126(2), and allege, respectively, that he received a contribution and failed to provide the treasurer of the Committee with "a detailed account" of it within 14 days of its receipt, in violation of Election Law §14-122; that he received a contribution from a single contributor that amounted to more than ninety-nine dollars and failed to file a statement of its receipt, in violation of Election Law §14-102; and that he received a contribution to a political committee and converted it to his personal use, in violation of Election Law §14-130.
In an omnibus motion, the defendant seeks inspection of the grand jury minutes and dismissal or reduction of the charges in the indictment, claiming that the evidence before the grand jury was legally insufficient and that the grand jury proceedings were defective. The defendant also claims that the indictment itself is defective, and he moves to dismiss it in the interests of justice. Finally, the defendant moves for an order directing the People to provide him [*2]with a Bill of Particulars pursuant to CPL § 200.95, and for discovery and inspection under CPL § 240.40. Upon consideration of the papers submitted by both the defendant and the People, and after hearing oral argument from both parties, for the reasons set forth below, count three, charging the defendant with falsifying the business records of the Board of Elections, and counts five, six and seven, which charge the defendant with Election Law violations, are dismissed, but the motion to dismiss as to the remaining counts of the indictment is denied, as are the defendant's other motions, except as specified below.
THE GRAND JURY EVIDENCE
The defendant's motion for the Court to inspect the grand jury minutes is granted; the Court has inspected and reviewed the grand jury minutes. The defendant's motion for disclosure of the grand jury minutes to him is denied since disclosure is unnecessary for the resolution of his motions.[FN1]
The following is a summary of the evidence before the grand jury. The Club, which was formed in February of 2001 and registered with the Board of Elections, is headquartered at 1218 Union Street, Brooklyn, New York, in an office across the hallway from the defendant's Assembly District Office. The Club has a president and a treasurer. The defendant, who holds neither position, serves as a member of its Executive Committee. Using the dues it collects and the contributions it receives, the Club makes contributions to other political organizations, including the campaign committees of candidates for political office. When he receives bills for the Club's expenses, such as its rent and utilities, the president directs the treasurer to pay those bills. All directions to make contributions to political organizations and candidate committees come from the defendant. Although the Club makes contributions to candidates' committees, it has made no contributions to individuals.
The Committee is an organization formed to receive contributions and make expenditures on behalf of the defendant's re-election campaign. The Committee's office is located in the Brooklyn home of its treasurer, who, by her own account, is "basically the sole person in charge" of the Committee. Its secretary, or co-treasurer, is the Chief of Staff of the defendant's Assembly offices. The treasurer and the secretary are the only signatories on the Committee's bank account. The Committee raises funds for the defendant's campaigns and reimburses him for campaign-related expenses. In order to be reimbursed by the Committee for a campaign expense he has personally [*3]incurred, the defendant must submit to the treasurer a payment voucher describing the expense and explaining why he should be reimbursed for it.
In addition to reimbursing campaign-related expenses and organizing fund-raising events, the Committee's treasurer is responsible for filing its financial reports with the Board of Elections, including every campaign contribution the Committee receives, and all other financial transactions and expenditures, including whatever bills, loans or obligations the Committee incurs. Unless the contributions from a single contributor aggregate ninety-nine dollars or less, she is required to report the contributor's name and address, the date and amount of the contribution, and, if the contribution was made by check, the check number. The treasurer is required by the Election Law to file reports with the Board of Elections in January and July of each year, as well as additional reports that are due for primary and general elections.
In a form known as a "CF-16 " filed with the Board of Elections for the 2000 and 2002 election campaigns, the defendant stated under oath that he was a candidate for election, that he had made no campaign expenditures relating to his candidacy, that he did not intend to make such expenditures, except through the Committee, which would file financial reports on his behalf. A candidate who receives a contribution after filing a "CF-16" must turn the contribution over to the Committee's treasurer within fourteen days of its receipt, and the Committee must report the contribution, along with any others it receives directly, to the Board of Elections.
During the months of October and November of 2001, the treasurer of the Club wrote a number of checks, including three payable to the Committee. One, dated October 17, 2001, was for three thousand dollars, and included the notation "Election Expenses." Another, dated November 20, 2001, was for two thousand five hundred dollars, and had no notation indicating its purpose. The treasurer of the Committee deposited both of these checks in the Committee's account at Carver Federal Savings Bank. The treasurer of the Club also wrote a third check payable to the Committee, dated October 30, 2001, for five thousand dollars, and wrote on the check the notation "contribution." On October 31, 2001, the defendant signed his name on the back of this check and deposited it in a personal account he maintained at another bank in Kings County. The defendant told neither the treasurer nor the secretary of the Committee about this check.
In January, 2002, the treasurer of the Club filed a report with the Board of Elections, which listed the contributions the Club had received and the disbursements it had made during the period between July 16, 2001, and January 15, 2002. In that report, the treasurer included the five thousand dollar check, along with the other two checks, as contributions the Club had made to the Committee. On January 23, 2002, the treasurer of the Committee mailed to the Board of Elections the Committee's January Report. In that report, the treasurer listed the contributions the Committee had received during the period between July, 2001, and January, 2002, including the two checks from the Club that she had deposited in the Committee's account, but not the five thousand dollar check, of which she was unaware.
THE SUFFICIENCY OF THE GRAND JURY EVIDENCE
The defendant first challenges the legal sufficiency of the evidence to support the charges in the indictment. " '[L]egally 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." People v. Manini, 79 NY2d 561, 568 (1992); People v Haney, 30 NY2d 328, 335-336 (1972); CPL [*4]§70.10 (1). Evidence before the grand jury is legally sufficient, if when "viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury." People v. Manini, 79 NY2d at 568-569, citing People v Jennings, 69 NY2d 103, 114-115 (1986); People v Pelchat, 62 NY2d 97, 105 (1984). Even when assessing the sufficiency of the evidence in an entirely circumstantial case, the question for the Court is "whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes." People v. Deegan, 69 NY2d 976, 979 (1987).
Based on the evidence before it, the grand jury could find that the defendant received, on behalf of the Committee, a five thousand dollar contribution made by the Club, and then stole the check from the Committee by depositing it in his personal account. From this evidence, the grand jury could also find that the defendant intentionally concealed the theft by not reporting the contribution to the Committee's treasurer, thus causing the contribution to be omitted from the January Report, part of the business records of the Committee, and causing the January Report, a written instrument the treasurer filed with the Board of Elections, to contain a false statement or information. Finally, from this evidence, the grand jury could find that the defendant knowingly and willfully violated the Election Law by failing to provide the treasurer with a "detailed account" of the contribution within fourteen days of its receipt, by failing to file with the Board of Elections a statement that he received the contribution, and by converting the contribution to his personal use. However, the evidence is not legally sufficient to establish that he falsified the business records of the Board of Elections.
The defendant makes specific challenges to the legal sufficiency of the evidence as to each count. As to the grand larceny count, he asserts that the evidence is insufficient to establish that he intended to steal the proceeds of the check, and insufficient to establish that he did not deposit it in his personal account under a claim of right. In support of this claim, his attorney alleges in his motion papers that the check was intended as repayment to the defendant for having "advanced $5000 to [an assemblywoman] for use in the Democratic Primary on behalf of Alan Hevesi (the endorsed candidate of the Kings County Democratic Committee)," and that the Club erred in making the check payable to the defendant's re-election Committee rather than to him personally. Based on this claim, he argues that the check was his own, and that the grand jury lacked sufficient evidence to find that he intended to steal it from the Committee or deprive the Committee of property it owned.
Because the Legislature has explicitly made a "claim of right" defense applicable only to a prosecution for larceny committed by a trespassory taking or embezzlement, Penal Law § 25.00(1),[FN2] [*5]the Court of Appeals has observed that "[t]he defense does not apply to all forms of larceny." People v. Reid, 69 NY2d 469, 476 (1987). An indictment need not allege that the defendant committed a particular form of larceny, see Penal Law § 155.45(1), and the indictment in this case does not do so.[FN3] However, the theory of the prosecution as it was presented to the grand jury appears to be larceny by embezzlement, since the "essence" of this form of larceny is "the conversion by the embezzler of property belonging to another which has been entrusted to the embezzler to hold on behalf of the owner." People v. Yannett, 49 NY2d 296, 301 (1980) (citations omitted). Even assuming that a claim of right defense does not apply to "fungible cash taken to satisfy a claimed debt," see People v. Reid, 69 NY2d 469, 476 (1987) (defendant who forcibly takes cash to satisfy a debt may not raise claim of right to robbery charge), here the defendant's factual claim while not entirely clear in its particulars includes an assertion that the check should have been made payable to him, and was made payable to the Committee only by mistake. In this way, he apparently claims not only that he was owed five thousand dollars, but that the five thousand dollar check itself was his property and that he did not intend to deprive the Committee of property which it, rather than he, owned.
The simple answer to this factual claim is that it appears only in the defendant's motion papers. Because there was no evidence before the grand jury to support the claim, there is no occasion for the Court to consider it in assessing the legal sufficiency of the grand jury evidence. Specifically, there was no evidence before the grand jury that the defendant had previously loaned money to anyone, or that the check was, or was meant to be, repayment of such a loan. To the contrary, the only evidence before the grand jury relating to the purpose of the check was that it was, and was meant to be, a contribution to the Committee. Thus, the evidence that he deposited it in his own account and did not turn it over or report it to the Committee's treasurer is legally sufficient to establish that he intended to steal it from the Committee.
The defendant also contends that even if the check had been intended for the Committee, he was nonetheless an "owner" of the check and, as such, may not be convicted of stealing it from the Committee. Larceny is committed only when property is wrongfully taken from an "owner" of that property, Penal Law §155.05(1), and for this purpose, an "owner" is defined as "any person who has a right to possession thereof superior to that of the taker, obtainer or withholder." Penal Law §155.00(5). The defendant argues that because the Committee was created for his benefit, he was as an "equitable owner" of the Committee's funds and had a right equal with the Committee to possess the check.
The defendant relies for this proposition on Penal Law § 155.00(5), which provides that "[a] joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof." Pursuant to that provision, a partner may not [*6]be convicted of stealing the partnership's assets from another partner, People v. Zinke, 76 NY2d 8 (1990); one owner of a joint bank account may not be convicted of stealing funds in that account from another owner, People v. O'Brien, 102 Misc 2d 246 (Dist. Ct. Nassau Co. 1979); and one spouse may not be convicted of stealing from another spouse property in which both had an equitable interest, People v. Person, 239 AD2d 612 (2d Dept. 1997). None of these situations is, however, analogous to this one, since a candidate is not a joint or common owner of the assets of the candidate's committee.
Under New York law, a "political committee" includes "any committee, political club, or combination of one or more persons operating to ... aid or take part in the election or defeat of a candidate for public office." Election Law §14-100(1).[FN4] Contrary to the defendant's contention, the Committee was a legal entity distinct from him, see Abramovsky, "Personal Use of Campaign Funds: Is It a Crime?" N.Y.L.J., September 3, 2004, p. 3, col.1 ("the funds belong to the campaign which, according to both New York and federal electoral law, is a separate entity, rather than the candidate"), and the defendant did not have an equal right to its assets or an equitable interest in them. Although "[c]ontributions received by a candidate or a political committee may be expended for any lawful purpose," Election Law § 14-130, such contributions may "not be converted by any person to a personal use which is unrelated to a political campaign or the holding of a public office or party position." Id. Moreover, because the defendant filed the CF-16 with the Board of Elections, he was required by law to turn over any contribution he received to the Committee's treasurer within fourteen days of its receipt. Election Law § 14-122. Given these limitations on his use and possession of contributions made to the Committee, while the defendant could accept the check from the Club as the Committee's agent, the Committee had, within the meaning of Penal Law § 155.00(5), "a right to possession thereof superior to that of the [defendant]."
People v. Keeffe, 50 NY2d 149 (1980), which the defendant cites, does not support his position. In that case, Keeffe, an attorney, established a special account in which funds from a client's judgment in a medical malpractice action were held, and he depleted the account before paying the fee owed to his client's former attorney. Because there was no lien or order giving the former attorney an interest in the funds, the Court of Appeals held that the former attorney was not an "owner" of the funds, and that Keeffe could thus not be convicted of stealing them from him. In this case, however, the Election Law required that the defendant surrender the check to the Committee, gave the Committee the power to determine the disbursement of its proceeds, and precluded the Committee from disbursing those proceeds to the defendant for purposes unrelated to a campaign or to the holding of a public office or party position. Thus, the Committee, unlike the former attorney in Keeffe, had a particularized interest in, and a superior right to, the check.
[*7]
The defendant also points to People v. Jennings, 69 NY2d 103 (1986), in which the Court of Appeals reversed a judgment convicting an armored guard company and its officers of stealing from Chemical Bank. Chemical had contracted with the company to collect money from certain of its offices and deliver the money to Chemical's account at the Federal Reserve Bank. The contract required the company to count the money before delivery, and for that purpose permitted the company to maintain possession of the money for up to seventy-two hours. Able to count the money in a shorter period of time, the company invested it with another bank until the contract required that it be delivered to Chemical's Federal Reserve account. The larceny charge was premised on the theory that the defendants had stolen from the Bank the interest the company earned from those short term investments. The Court of Appeals held that because the principal was always delivered to Chemical's account in the period of time required by the contract, the defendants' conduct did not demonstrate the mens rea required for larceny, that is, an "intent to deprive another of property or to appropriate the same to himself or to a third person," Penal Law § 155.05(1), since such an intent was "simply not satisfied by an intent temporarily to use property without the owner's permission, or even an intent to appropriate outright the benefits of the property's short-term use." 69 NY2d at 119.
Although the defendant in this case also had a right to possess the check for a limited period of time, he is not charged with stealing anything of value derived from its temporary possession, but rather with stealing the proceeds of the check itself. Based on the evidence before it, the grand jury could find that, although required by law to deliver the check to the treasurer of the Committee, he instead converted it permanently to his own use by depositing it in his personal account. And from this conduct, the grand jury could infer that he, unlike the defendants in Jennings, withheld property from the Committee with intent to deprive the Committee of it permanently, and with intent to appropriate it permanently to himself.
The defendant next contends that the evidence underlying the second and third counts of the indictment, which charge him with Falsifying Business Records in the First Degree, is insufficient to establish that he made any false entries, or directed that any false entries be made, in the business records of either the Committee or the Board of Elections, or that he intended to defraud either organization.[FN5] However, these counts of the indictment do not charge the defendant with "mak[ing] or caus[ing] a false entry," as prohibited by Penal Law § 175.05(1), but rather with "prevent[ing] the making of a true entry and caus[ing] the omission thereof," as prohibited by Penal Law § 175.05(4), and the evidence is legally sufficient to support these allegations.
The Committee was required to report in statements to the Board of Elections all contributions it received, "specifically accounting for by separate items" all contributions from a single contributor aggregating more than ninety-nine dollars. Election Law § 14-102(1). From this [*8]obligation, the grand jury could infer that the Committee would prepare and retain copies of the statements it filed with the Board.[FN6] Thus, the grand jury could find that by concealing his receipt of the five thousand dollar check from the Committee's treasurer, the defendant intentionally prevented the treasurer from making a true entry concerning the check in the records of both the Committee and the Board, and intentionally caused the omission of such an entry in those records.
The defendant contends that the evidence fails to support the allegations in the second and third counts that the defendant falsified the business records of the Committee and the Board of Elections "with intent to defraud and including the intent to commit another crime and to aid and conceal the commission thereof." However, just as the evidence is legally sufficient to establish that he stole the proceeds of the check, it is also sufficient to establish that the reason he failed to inform the treasurer of the Committee that he had received it and thus prevented the making of a true entry, and caused the omission of a true entry in the records of both the Committee and the Board of Elections was to conceal the theft, a purpose which satisfies both branches of the requisite mens rea.
The question remains whether the records in question were business records within the meaning of Penal Law § 175.00(2), which defines a "business record" as a "writing or article ... kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity."[FN7] In People v. Bel Air Equip. Corp., 46 AD2d 773 (2d Dept. 1974), aff'd on other grounds, 39 NY2d 48 (1976), a moving company prepared padded vouchers for a customer which, at the customer's request, falsely inflated the cost of the move so that the customer could fraudulently obtain more money when it applied to the State Department of Transportation for the cost of the move. The Second Department reversed the convictions of the defendants, the president of the moving company and the company itself, for Falsifying Business Records in the First Degree. The Court concluded that, although the defendants maintained a duplicate set of the padded vouchers in their records, the vouchers were not business records because they "were not made for record keeping purposes or to reflect the corporate defendant's condition or activity," and "no false entry was made in any business journal or book of account." 46 AD2d at 774.
For similar reasons, in People v. Papatonis, 243 AD2d 898 (3d Dept. 1997), the Third Department reversed the conviction of another defendant for Falsifying Business Records in the First [*9]Degree. In Papatonis, a prospective employee's application for a job with a security company falsely stated that he had not been convicted of a felony. Although willing to "presum[e]" that the company kept the application on file, 243 AD2d at 900, the Court cited Bel Air in concluding that the application was not a "business record" of the company because "the Grand Jury evidence failed to establish that the application was 'kept or maintained' for the purpose of evidencing or reflecting the condition or activity of [the company], as indeed it could not ...." 243 AD2d at 900-01.
In this case, the Committee's treasurer was required by the Election Law to list in the January Report contributions to and expenditures by the Committee during the relevant period, and the Committee was required to file the report with the Board so that the Board could review those contributions and expenditures to assure that they complied with the Election Laws. Thus, whether in the hands of the Committee or the Board, the report "reflected the ... activity" of the Committee, and not of the Board, and was a "business record" of the Committee, but not of the Board. For this reason, the evidence before the grand jury is legally sufficient to support the second count of the indictment, but not the third, which must be dismissed.
The defendant also challenges the sufficiency of the evidence supporting the fourth count of the indictment, which charges him with Offering a False Instrument for Filing in the First Degree. This crime is committed, in relevant manner, by a person who, "knowing that a written instrument contains a false statement or false information, and with intent to defraud the state ..., offers or presents it to a public office ... with the knowledge or belief that it will be filed with ... such public office." Penal Law § 175.35. The instrument in this case, the January Report, was filed by the treasurer of the Committee with the Board of Elections, and the report, as previously noted, did not include in its list of contributions the five thousand dollar check payable to the Committee. Although the report is not a "business record" of the Board, it is clearly a "[w]ritten instrument" within the meaning of Penal Law § 175.00, which defines it as "any instrument ... containing written or printed matter ... used for the purpose of reciting, conveying or recording information ... which is capable of being used to the advantage or disadvantage of some person." The defendant makes no argument to the contrary. The defendant does argue, however, that this count should be dismissed because he neither prepared nor signed the report; because there is no evidence that the treasurer, who did file it, knew it was false; and because there is no evidence that he directed her to omit information from or falsely edit it. None of these arguments has merit.
A person may be found guilty of an offense either because he engaged in conduct constituting the offense himself, or because, "acting with the mental culpability required for the commission thereof, he solicits, commands, importunes or intentionally aids such person to engage in such conduct." Penal Law § 20.00. See People v. Mateo, 2 NY3d 383, 406, (2004)(describing as "settled" the "principle that [t]here is no distinction between liability as a principal and criminal culpability as an accessory"). Moreover, when a person is prosecuted as an accomplice pursuant to Penal Law § 20.00, it is no defense that the person who engaged in the conduct constituting the crime "is not guilty of the offense in question owing to ... unawareness of the criminal nature of the conduct in question or of the defendant's criminal purpose or to other factors precluding the mental state required for the commission of the offense in question." Penal Law §20.05(1).
These principles apply to the offense of Offering a False Instrument for Filing just as they do to any other. Thus, in Bel Air, supra, although affirming the reversal of the convictions of the moving company and its president for Falsifying Business Records in the First Degree, the Court of [*10]Appeals upheld their convictions for Offering a False Instrument for Filing based on evidence that the president directed an employee to prepare the bill fraudulently inflating the moving expenses. Seeking reimbursement beyond the actual cost of the move, the customer delivered a voucher to the Department, along with the fraudulent bill which supported it.[FN8] The Court of Appeals held that the voucher was a "[w]ritten instrument" within the meaning of Penal Law § 175.00(3), and that the statements in the voucher that "the bill is just, true and correct" and that "the balance is actually due and owing" were "patently false." 39 NY2d at 55. The Court also held that "[s]ince [the president and his company] had this filing in mind when Bel Air's employee was directed to prepare a fraudulent bill, the filing was properly attributed to them." Id.
Bel Air dictates rejection of the defendant's claim that he cannot be held liable for the crime of Offering a False Instrument for Filing in the First Degree because he did not prepare, sign or file the January Report. In Bel Air, the voucher, rather than the bill, was the "false instrument" the defendant was charged with filing, and while the defendant directed that the fraudulent bill be prepared, he gave no such instruction concerning the voucher, let alone prepare, sign or file it. Nonetheless, the Court held him criminally responsible for its filing. Here, as in Bel Air, the grand jury could find that the defendant had the filing of the January Report "in mind" when he did not inform the treasurer of the Committee that he had received the Club's check, and could hold him responsible for its filing, too.
Of course, in order to be guilty of Offering a False Instrument for Filing based on a document prepared and filed by someone else, a person "must, at the very least, contemplate or understand that a writing of some sort will be involved." People v. Shu, 216 AD2d 46, 47 (1st Dept. 1995). In Shu, the defendant, who had been charged with criminal possession of a gun, induced another person to hire an attorney and to tell the attorney that he wanted to confess that he had been the gun's sole possessor. The attorney directed his client to put his confession in an affidavit, which the attorney forwarded to the defendant's attorney, who then forwarded it to the prosecutor. Based on the presentation of the affidavit to the prosecutor, the defendant was charged with and convicted of Offering a False Instrument for Filing, but the First Department reversed the conviction because it found no evidence that the defendant understood that his conduct would result in the presentation of an affidavit to the prosecutor.
In People v. Gurino, 143 AD2d 362, 363 (2d Dept. 1988), the defendant, who was president and sole shareholder of company, and who was under federal indictment, was also convicted of Offering a False Instrument for Filing in the First Degree. The instrument in that case was a questionnaire the defendant's employee had filed with New York City Board of Education, in which the employee falsely stated that there were no "actions or proceeding pending in this State or in any jurisdictions ... against any of the [company's] officers or principals." Like the First Department in Shu, the Second Department reversed the defendant's conviction for lack of evidence that the defendant "had specific knowledge of the completion and filing of the challenged questionnaire."
In contrast, in People v. Papatonis, supra, the defendant not only completed an application for a job, but an application for a license as security guard as well, in which he also falsely stated that [*11]he had not been convicted of a criminal offense. Although the defendant did not himself file the application, the "evidence submitted to the Grand Jury demonstrate[d] that the defendant knew that the application had to be filed with the State in order for him to obtain a license and that [his prospective employer] would file said application on his behalf." 243 AD2d at 899. Accordingly, the Third Department held that "the actual filing of the application with the State was properly attributed to defendant," id., and upheld his conviction for Offering a False Instrument for Filing in the First Degree. Here, as in Papatonis, there was evidence that the defendant, who had sworn that the treasurer would file financial reports on his behalf, knew that such a report would be filed, and knew that it would not include the five thousand dollar check in its list of contributions.
The defendant's claim that he could be held liable for this crime only if the person who filed the report knew that it contained a false statement or information is similarly unavailing. In Papatonis, the employer who filed the license application with the State, like the treasurer who filed the January Report in this case, did not know that it contained a false statement, but the Court relied on Penal Law § 20.05(1) in holding that "[t]he mere fact that [the prospective employer] did not possess the necessary mens rea for the commission of the offense [was] no defense to defendant." 243 AD2d at 900.
Finally, there is, as the defendant surmises, no evidence that the defendant explicitly directed the treasurer to omit the check from her report. Nor did he, like the defendant in Papatonis, intentionally aid the prospective employer to file his application by completing it and giving it to him to file. Here, however, the evidence that the defendant delegated to the Committee's treasurer the responsibility for filing reports of contributions made to his campaign, and then withheld from her the fact that he had received the check from the Club, is sufficient to establish that he intentionally aided her albeit without her knowledge to submit a false statement to the Board of Elections, no less than if he had prepared it himself.
Finally, the defendant asserts that the evidence before the grand jury is insufficient to support counts five, six and seven, which charge him with violations of the Election Law, because it was not his responsibility to prepare, sign and file the required reports, and because his "lack of criminal intent is clear" from his loan to the assemblywoman.
Count five alleges that the defendant violated Election Law §14-122, which provides in pertinent part of subdivision one, that "[w]hoever, acting as an officer, member or agent of a political committee ... receives any ... contribution ... shall, ... within fourteen days after any such receipt, ... give to the treasurer of such committee, or to such candidate if an agent authorized by him a detailed account of the same ...." The evidence is legally sufficient to establish that the defendant himself, acting as an "agent" of the Committee, received the five thousand dollar check as a contribution to the Committee, and failed to give any account, let alone a "detailed" one, to the treasurer.
Count six alleges that the defendant violated Election Law § 14-102, which provides in pertinent part of subdivision one that, "[t]he treasurer of every political committee which ... receives ... any money or other valuable thing ... shall file statements ..., at the times prescribed by this article setting forth all the ... contributions to ... the committee ...." Although § 14-102 places the obligation of reporting contributions on the treasurer and not the candidate, for the reasons previously set forth in connection with the count charging the defendant with Offering a False Instrument for Filing, the defendant may be found liable for this crime as an accomplice pursuant to Penal Law § 20.00, and, pursuant to Penal Law § 20.05(1), it is no defense that the treasurer had no knowledge of the [*12]contribution.[FN9]
Count seven charges the defendant with violation of Election Law § 14-130, which provides, in pertinent part, that contributions received by a candidate or a political committee "shall not be converted by any person to a personal use which is unrelated to a political campaign or the holding of a public office or party position." Based on the evidence before it, the grand jury could find that the defendant violated this statute by his own conduct and not as an accomplice of the treasurer by depositing in his personal account the five thousand dollar check the evidence indicates was a contribution from the Club to the Committee.
A violation of the Election Law is criminal if it is committed "knowingly and willfully." Election Law § 14-126(2). As previously indicated, the evidence before the grand jury indicates that the check was a contribution the Club made to the Committee; there is no evidence before the grand jury supporting the defendant's claim that the check was intended as repayment of a loan he himself previously made. Because the evidence is thus sufficient to establish that the defendant stole the check from the Committee, it is also legally sufficient to establish that he failed to report it to the treasurer, caused her to fail to report it to the Board of Elections, and converted its proceeds to his unlawful personal use, acting "knowingly and willfully." Accordingly, the evidence is legally sufficient to support each of these counts.
THE PROPRIETY OF THE GRAND JURY PROCEEDINGS
The defendant moves to dismiss the indictment based on a variety of claims he makes concerning the integrity of the grand jury proceedings. 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. 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. Because there was no evidence supporting the defendant's claim of right defense to the grand larceny charge, his assertion that the grand jury should have been instructed concerning the defense is without factual basis.[FN10] [*13]
More specifically, the defendant contends that the proceedings were defective because the prosecutor conferred immunity on every witness but one, the assemblywoman to whom he allegedly loaned five thousand dollars. Although the defendant offered her to the grand jury as a witness, the prosecutor determined that she would not be permitted to testify unless she waived immunity, and she refused to do so. The defendant asserts that the grand jury should have been permitted to vote on whether they wished to hear from the assemblywoman, and to overrule the prosecutor's determination, and he demands that a hearing be conducted so that the Court may decide whether that determination was proper.
The People insist that the defendant's motion to dismiss the indictment on this ground should be denied without a hearing. They assert that they insisted on the waiver because they "had and continue to have reason to believe that [the assemblywoman], with reference to the matter under investigation by the Grand Jury as well as with reference to other matters, may have knowingly and willfully violated provisions of the Election Law," and "may, therefore, be subject to criminal prosecution in the future." The People claim that their discretion to insist that a witness waive immunity in the grand jury is absolute and not subject to judicial review.
Subdivision six of section 190.50 of the Criminal Procedure Law provides that "[a] defendant ... may request the grand jury, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding," CPL §190.50(6), and, "if the grand jury desires to hear" the witness, "it may direct the district attorney to issue and serve a subpoena upon such witness, and the district attorney must comply with such direction." CPL § 190.50(3). However, those rights are not unqualified. By statute, "the People may apply to the court which impaneled the grand jury for an order vacating or modifying such direction or subpoena on the ground that such is in the public interest." Id. Moreover, because the witness would otherwise receive immunity by testifying before the grand jury, see CPL § 190.40(2), "[n]otwithstanding the provisions of subdivision three [of CPL § 190.50], the district attorney may demand that any witness thus called at the instance of the grand jury sign a waiver of immunity ... before being sworn, and upon such demand no oath may be administered to such witness unless and until he complies therewith." CPL §190.50(4).
Although a person who is called as a witness in any other kind of legal proceeding, including a criminal trial, "may refuse to give evidence requested of him on the ground that it may tend to incriminate him," CPL § 190.20(1), a court may extend immunity to the witness and thus compel the witness to testify. CPL §§ 50.20(2), 50.30. However, the court may exercise this power, "only when expressly requested by the district attorney to do so." CPL § 50.30. Thus, just as the People have a statutory right to demand that a grand jury witness offered by the defendant waive immunity before testifying, see People v. Batista, 233 AD2d 457 (2d Dept. 1996), so the People have discretion [*14]to deny immunity to a defense witness at trial if the witness refuses to testify on self-incrimination grounds. While this discretion is broad, People v. Buszak, 185 AD2d 621 (4th Dept. 1992), it is subject to review for abuse, People v. Owens, 63 NY2d 824, 825 (1984), if , for example, "the District Attorney has acted in bad faith or has otherwise engaged in conduct which violates a defendant's due process right to a fair trial." People v. Osorio, 86 AD2d 233, 238 (1st Dept. 1989).
The Court of Appeals has held that due process may be violated "in cases in which witnesses favorable to the prosecution are accorded immunity while those whose testimony would be exculpatory of the defendant are not, or in ones where the failure to grant immunity deprives the defendant of vital exculpatory testimony ...." People v. Shapiro, 50 NY2d 747, 760 (1980). Thus, the People may not, as in Shapiro, threaten defense trial witnesses with prosecution if they contradict their prior testimony, and then deny them the immunity extended to others, thus "insur[ing] their unavailability as witnesses for the defendant." Id. Due process may also be violated when the prosecution uses as an informant a person who actively participated in the criminal transaction with which the defendant is charged, but then refuses to grant immunity to the informant when, after the prosecution does not call the informant as a trial witness, the defense calls the informant to give exculpatory testimony. People v. Sapia, 41 NY2d 160, 166 (1976) (no due process violation because the informer was "at most a facilitator and observer" rather than an "actor" in the criminal transactions). See also People v Adams, 53 NY2d 241, 247 (1981); compare People v. Howard, 151 AD2d 990 (4th Dept.).[FN11]
The defendant insists that the standard applicable at trial also applies to grand jury proceedings. However, a grand jury proceeding, unlike a trial, is not adversarial in nature. While the prosecutor is not allowed unlimited discretion in the presentment of his case, People v. DiFalco, 44 NY2d 482 (1978), and owes "a duty of fair dealing to the accused and to the courts," People v. Pelchat, 62 NY2d 97, 105 (1984), the prosecutor is not obligated either to search for all evidence favorable to the defendant or to present it to the grand jury. People v. Lancaster, 69 NY2d 20 (1986); People v. Isla, 96 AD2d 789 (1st Dept. 1983). Thus, the Second Department has held that, pursuant to CPL §190.50 (4), the People could refuse immunity to a witness the defendant offered to the grand jury, even though "[t]he witness claimed to know that the defendant was in his home sleeping at or about the time of the crime." People v. Batista, 233 AD2d 457, 458 (2d Dept. 1996); see also People v. Buszak, 185 AD2d 621 (4th Dept. 1992).[FN12]
[*15]
Moreover, there is a practical reason to afford a prosecutor greater discretion to withhold immunity from a witness in the grand jury than at trial, since it prevents "a lay body of grand jurors" from immunizing "a suspect without consent of the People and without sufficient knowledge of, or even access to, all of the relevant facts." Preiser, "Practice Commentaries," McKinney's Cons. Laws of NY, Book 11A, CPL §190.50(4). As the Court of Appeals has observed, "to permit a defendant to override the prosecutor's discretion" to require a waiver of immunity from a grand jury witness suspected in the very crimes the grand jury is investigating "could itself lead to abuses of the immunity statute." People v. Adams, 53 NY2d at 247-248.
Whether judged by Pelchat's "duty of fair dealing" in the grand jury, or by the standards applicable to a refusal to extend immunity to a witness at trial, the defendant has made no showing of prosecutorial abuse here. Although the People did present witnesses who testified with immunity, there is no indication from the evidence presented to the grand jury, or from the claims the defendant now makes, that, at least in this matter, these witnesses engaged in any wrongdoing. The Club's treasurer, for example, reported to the Board of Elections that the Club had made a five thousand dollar contribution to the Committee, and the defendant apparently concedes that the Committee's treasurer, who did not report the contribution, did not know that the check had been written. Moreover, no allegations have been made that the assemblywoman was intimidated or threatened with prosecution for the purpose of preventing her from testifying before the grand jury pursuant to a waiver of immunity. See People v. Owens, 63 NY2d at 826 ("Nor can we presume overreaching by the [by the prosecutor] ... where the only record of the content of the conversation [with the witness] indicates no intimidation or coercion").
In any case, given the vagueness of the defendant's offer of proof and the ambiguous nature of the "loan" described in the defendant's motion papers, there is no factual basis to question the People's claim that, "with reference to the matter under investigation by the Grand Jury as well as with reference to other matters, [the assemblywoman] may have knowingly and willfully violated provisions of the Election Law," and "may, therefore, be subject to criminal prosecution in the future." Nor does "the absence of current charges against the witness with respect to the subject of the proposed testimony ... establish bad faith on the part of the prosecutor." People v. Owens, 63 NY2d at 826; see also People v. Adams, 53 NY2d 241, 247 (1981); People v. Smith, 247 AD2d 781, 784 (3d Dept. 1998).
Accordingly, the defendant's motion to dismiss the indictment on this ground is summarily denied.
DEFECTIVE ALLEGATIONS IN THE INDICTMENT
The defendant also claims that each count of the indictment itself is defective because its factual allegations are inadequate. A larceny count need not specify that the defendant committed the larceny in any particular manner, unless the theory of prosecution is that the larceny was from a person or was committed by extortion. Penal Law § 155.45(1). Here the first count of the indictment, charging the defendant with Grand Larceny in the Third Degree, specifically alleges that the defendant stole United States currency from the Committee to Re-Elect Assemblyman Clarence Norman, Jr., and that the value of the property exceeded three thousand dollars. These allegations [*16]are legally sufficient. People v. Levin, 57 NY2d 1008 (1982); People v. Duffy, 231 AD2d 586 (2d Dept. 1996).
Count two charges the defendant with the crime of Falsifying Business Records in the First Degree, and it alleges that, on or about and between October 30, 2001, and January 23, 2002, with the intent to defraud and to commit another crime, and "to aid and conceal the commission thereof, [he] prevented the making of a true entry and caused the omission thereof in the business records" of the Committee. Count four charges him with the commission of Offering a False Instrument for Filing, and alleges that the defendant, on or about and between October 30, 2001, and January 23, 2002, knowing that the January Report contained a false statement and false information, presented it to the Board of Elections "with intent to defraud the state and any ... public authority ... of the State," and "with the knowledge and belief that it would be filed with, registered and recorded in and otherwise become a part of the records of" the Board. The defendant argues that each of these counts is defective because it alleges that the crime charged was committed over too broad a time span; because it fails to specify what person or entity was the object of the fraudulent intent; and because neither of these counts specifies the false entry, statement or information.
An indictment must contain "[a] statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a specific period of time." CPL 200.50(6). However, "the statute neither requires the exact date and time, nor does it restrict the length of the designated period of time which may be so stated." People v. Keindl, 68 NY2d 410, 417 (1986); citing People v Morris, 61 NY2d 290, 294 (1984). "When time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms." People v Watt, 81 NY2d 772, 774 (1998); People v. O'Connor, 240 AD2d 764-765 (2d Dept. 1997). If the allegations in a count are inadequate, dismissal may be required, CPL §§210.25(1); 210.20(1)(a); however, "when time is not an essential element," dismissal is not necessary if the indictment and the bill of particulars provide specificity sufficient to permit a defendant to prepare a defense. People v. Morris, 61 NY2d at 295. See also People v. Iannone, 45 NY2d 589 (1978).
The purposes for requiring that a count specify when an offense was committed are the same as those for requiring that the count contain an "asser[tion] of facts supporting every element of the offense charged and the defendant's ... commission thereof ...." CPL § 200.50(7)(a). The first is to "provide the defendant with fair notice of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer to the charges and to prepare an adequate defense." People v Keindl, 68 NY2d at 417 (citations omitted). The second is "to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence ...." People v. Iannone, 45 NY2d at 595 (citation omitted). The third is "to enable the defendant, once convicted, to raise the constitutional bar of double jeopardy against subsequent prosecutions for the same offense." People v. Keindl, 68 NY2d at 417. All three of these purposes are satisfied by the time periods specified in counts two and four.
The first count of the indictment charges the defendant with stealing the five thousand dollar check from the Committee "on or about and between October 30, 2001, and October 31, 2001." As a copy of the check supplied by the defendant to the Court indicates, the check was dated October [*17]30, 2001, and it was deposited in the defendant's account on October 31, 2001. As the defendant knows, and as the discovery provided to him by the People indicates, the January Report was filed with the Board of Elections on January 23, 2002. Thus, it is clear that counts two and four allege that the crimes were committed between the time the Club issued the check to the Committee and the time the treasurer of the Committee filed the January Report.
Admittedly, the second count might have limited the time period in which the defendant allegedly falsified the records of Committee to the fourteen day period in which he had to report the contribution after he allegedly received it, or it, along with the fourth count, might have limited the time period in which he allegedly falsified the Committee's records and offered a false instrument for filing to "on or about January 23, 2002," when the report was sent to the Board. However, these counts were apparently drafted on a different theory that throughout the longer time period specified, the defendant had the continuing opportunity to, but never did, report the receipt of the check to the treasurer so that she could include it in the January Report. Whichever approach may be more logical, the People's gives notice to the defendant adequate to the purposes for which notice is required.
The defendant's complaints that counts two and four fail to allege who or what entity the defendant allegedly intended to defraud, the content of the omission he allegedly caused in the business records of the Committee, and the false statement included in the January Report are also without merit. The Court of Appeals has consistently held that allegations in an indictment that track the language of the statute defining the offense charged are legally sufficient. People v. Levin, supra; People v. Iannone, supra, see also People v. Duffy, supra. Because counts two and four each track the language of the statutes defining the crimes charged, they are legally sufficient. Moreover, the discovery the defendant has received and the People's responses in the Bill of Particulars have provided him with the information he complains is lacking in these counts, and with sufficient information to prepare and present a defense. People v. Morris, supra; People v. Iannone, supra [FN13]
Finally, the defendant contends that the fifth, sixth, and seventh counts of the indictment, which charge the defendant with "the crime[s]" of violation of Election Law §§12-122; 14-102; and 14-130, respectively, are defective in a variety of respects. His complaint about the time period set forth in the sixth count is without merit for the reasons previously stated in connection with the second and fourth counts. His complaint that all three of the counts fail to specify which of certain alternative allegations they intend to prove at trial is also without merit. People v. Charles, 61 NY2d 321, 327-328 (1984), quoting People v. Nicholas, 35 AD2d 18, 20 (3d Dept. 1970)("Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others") (internal quotation marks deleted).
The defendant also complains, however, that each count is defective because it fails to allege that the defendant engaged in the proscribed conduct "knowingly and willfully," and thus violates [*18]the requirement of CPL § 200.50(7)(a) that each count of an indictment assert "facts supporting every element of the offense charged and the defendant's ... commission thereof ...." The Court of Appeals has consistently held that when a count of an indictment fails to allege facts constituting one of the elements of the offense charged, a specific reference to the name or section number of the statute alleged to have been violated nonetheless constitutes a jurisdictionally sufficient allegation of all the elements of the crime. People v. Ray, 71 NY2d 849 (1988) (element of possessing weapon "unlawfully," omitted from count charging defendant with Criminal Possession of a Weapon in the Second Degree incorporated by reference in count to name of crime); People v. Cohen, 52 NY2d 584 (1986) (element that defendant failed to file state and local tax form "willfully" incorporated by reference in count to name and section of tax law allegedly violated). Each of the counts here does specify, by number, which provision of the Election Law the defendant allegedly violated, and each includes factual allegations sufficient to establish each violation. However, subdivision two of Election Law § 14-126 makes their violation criminal only when committed "knowingly and willfully,"[FN14] a mens rea not required by the Election Law provisions referenced in the counts, and the counts themselves neither allege that he acted with this mens rea, nor make reference to Election Law § 14-126 by name or number.
The People point out that the grand jurors were read the provisions of Election Law § 14-126(2), and that they were specifically instructed that they could charge the defendant with each of these Election Law counts only if they found that the defendant engaged in the proscribed conduct "knowingly and willfully." However, the adequacy of the instructions to the grand jury cannot save a count that fails to meet the pleading requirements of CPL § 200.50.
The People also note that the fifth count states that "the Grand Jury of the County of Kings ... accuses the defendant of the crime of violation of Election Law Section 14-122," and that the sixth and seventh counts similarly state that the defendant is accused of "the crime of violation of" the particular Election Law provision each concerns. (Emphasis added.) From this, they argue, the defendant was on notice that he was being prosecuted for a crime pursuant to Election Law § 14-126, and was thus on notice that he was charged with violating the specified provisions "knowingly and unlawfully." While including this language in each count might inform the defendant that it charges him with a crime (something he might, in any case, infer from their location in the indictment and their denomination as "counts"), none of the counts inform him that the basis for charging him with a crime is Election Law § 14-126, to which they make no reference. For the defendant to discover this fact and more importantly, to learn from reading Election Law § 14-126(2) that he is charged with engaging in the conduct "knowingly and willfully" he must look elsewhere. These counts, however, give him no indication of where to look, whether in the Election Law, the Penal Law, or [*19]elsewhere.[FN15]
The People also argue that the allegation that the defendant acted "knowingly and willfully" is inferentially incorporated in these counts in the same way that, when terms are used in a statute defining a crime, but those terms are themselves defined elsewhere, the definition of the terms is incorporated in a count that tracks the definition of the crime. In People v. Motley, 69 NY2d 870 (1987), for example, two defendants each pled guilty to attempted Promoting Prison Contraband in the First Degree in satisfaction of an indictment that charged them with the completed crime. Upholding the defendants' convictions, the Court of Appeals, citing People v. Cohen, 52 NY2d at 586, held that although "the statute defining the crime charged ... d[id] not define dangerous contraband," the reference in the indictment to the statute defining the crime charged constituted allegations of not only "the elements of the crime," but also "their statutory definitions." Similarly, the People note that charging the defendant with Larceny in the Third Degree in violation of Penal Law § 155.35 incorporates the definition of larceny in Penal Law § 155.05, and thus gives notice to the defendant that he is charged with acting with a particular intent.
The holding in Motley, however, like the People's argument, has no application here. There are no terms used in Election Law §§ 14-122, 14-102 or 14-130 the provisions the counts charge the defendant with violating that are defined in Election Law § 14-126(2). More generally, acting "knowingly and willfully" is simply not required to violate any of these provisions. Indeed, a person may be subjected to a civil penalty for violating Election Law § 14-130, even if the person acts neither knowingly nor willfully. Instead, in order for a person to be subject to a criminal penalty, Election Law § 14-126(2) requires a mens rea none of these statutes makes reference to or by it own terms requires.
Finally, the People argue that the indictment must be analyzed as a whole, and that, thus analyzed, the indictment "clearly conveys that defendant stands charged with the knowing and willful ... violation of the Election Law counts in the commission and concealment of defendant's [*20]commission of the Penal Law counts."[FN16] In making this argument, the People rely on People v. Cohen, supra. In that case, after holding that reference to the name and number of the tax statute in the count to which the defendant pled guilty sufficed to give him notice that he was charged with a "willful" failure to file, the Court of Appeals offered an additional observation. Specifically, the Court noted that it was "unrealistic ... to splinter the analysis of the many charges in this case, which involved a multicount indictment clearly indicating that the People intended to prove willfulness, and allow a challenge to the one count to which a plea was taken on the theory that that particular count provided insufficient notice." 52 NY2d at 587.
Such an analysis might be appropriate, as in Cohen, in determining that an omission is not a jurisdictional defect that survives a defendant's plea of guilty, see People v. Wright, 67 NY2d 749 (1986), rev'g on dissenting opinion, 112 AD2d 38 (4th Dept. 1985), or even a conviction after trial when no pre-trial motion to dismiss had been made, see People v. D'Angelo, 98 NY2d 733, 735 (2002). However, the Court of Appeals has made clear that it has thus far limited its doctrine of incorporation by reference to the question of whether an indictment is jurisdictionally defective, and has not held that it applies to a motion to dismiss a count for failure to meet the pleading requirements of CPL § 200.50. See People v. Cohen, 52 NY2d at 587 (noting that it had, "of course, [been] open to defendant to move to dismiss the indictment for failure to meet the requirements of CPL 200.50 or to seek a bill of particulars of the charge on which he was indicted"); People v. Wright, supra (noting in dissenting opinion, 490 AD2d at 39, upon which the Court Appeals reversed, that "[d]efendant never made a pretrial motion to dismiss the indictment for failure to meet the requirements of CPL 200.50, nor did the People ever move to amend the indictment"); see also United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 1995)("a defendant who objects to the indictment before trial ... is entitled to a more exacting review of the indictment than one who waits until after trial to object").
Under the circumstances present here, applying the dictum in Cohen would be inappropriate. The defendant has made a motion to dismiss the counts before trial, specifically challenging the sufficiency of the factual allegations in these counts. The People have not moved to amend the indictment, a motion which could not, in any case succeed, since an indictment may not be amended to cure the "[l]egal insufficiency of the factual allegations." CPL § 200.70(2)(b). The counts make no reference by name, number or otherwise to the statute which would inform him of the missing allegation, a reference which might arguably permit the granting of a motion to amend despite the [*21]limitation in CPL § 200.70(2)(b). Finally, no court has ever applied the dictum in Cohen to a count which includes no such reference.[FN17]
DISMISSAL IN THE INTEREST OF JUSTICE
As he did in connection with Indictment No. 5617/03, see People v. Norman, ___ Misc 2d ___ (Sup. Ct. Kings Co. 2004), 2004 WL 1964916, the defendant also moves for dismissal of this indictment in the interest of justice pursuant to CPL §§210.20(1)(i) and 210.40. He alleges that the check he is charged with stealing and concealing was, in actuality, his own money, that the crimes were victimless, that no person or entity ever demanded that the money be repaid, that the election laws did not alert him that he was acting improperly, and that no one ever complained of the irregularity, including the New York State Board of Elections, which did not initiate its own investigation.
An indictment should be dismissed in the interests of justice only when a court finds that "some compelling factor, consideration or circumstance" requires it. CPL § 210.40(1); see People v. Guzman, 168 AD2d 154, 156 (2d Dept. 1991); People v. Belge, 41 NY2d 60, 62-63 (1976)(Fuchsberg, J., concurring)(court should exercise its discretion "sparingly" and only in that "rare" and "unusual" case where it "cries out for fundamental justice beyond the confines of conventional considerations."). After reviewing the facts of the case, and evaluating them in light of the criteria set forth in CPL § 210.40(1)(a)-(j), both "individually and collectively," People v. Clayton, 41 AD2d 204, 208 (2d Dept. 1973), this Court finds no such compelling "factor or circumstance."
The crimes with which the defendant is charged are not victimless, since the Club, or at least those who made contributions to the Club; the Committee, which despite the defendant's claims to the contrary, is not his alter ego; and the Board of Elections, which is charged with monitoring compliance with the Election Law, are all victims of the defendant's conduct, if the charges are proven. Whether a victim of a crime has made a complaint is of no great relevance when the defendant allegedly has influence over, or has concealed his conduct from, the people or organizations who might have lodged a complaint. In any event, the true gravity of these offenses and the harm they allegedly produced lie not in the injury to a particular victim, but in the [*22]impairment of public trust in the election process. Accordingly, the nature of the crimes charged militate against, rather than in favor of, dismissal. CPL § 210.40(1)(a),(b).
By voting this indictment, the grand jury necessarily rejected the claims the defendant now advances, that is, that the money was his own; that he was not on notice that he was not entitled to keep the contribution; and that he had no obligation to inform the treasurer of its receipt. Similarly, the sufficiency of the evidence before the grand jury supporting those charges contradicts his assertion that there is no evidence of his intent to commit larceny or of his knowledge that what he did was illegal. The defenses the defendant now raises to exonerate himself, or mitigate the seriousness of the crimes with which he is charged, are matters appropriately presented to a jury at trial. CPL § 210.40(1)(c).
Without disputing the defendant's accomplishments, or rejecting their significance, his contributions to his constituents in particular and to society in general do not justify dismissal of charges that he abused the trust placed in him by the public. CPL § 210.40(1)(d). See People v. Kelley, 141 AD2d 764 (2d Dept. 1988)("The mere fact that the defendant may be a police officer ... or has an exemplary background ... is insufficient to justify the exercise of the court's discretion" to dismiss an indictment charging the defendant with DUI)(citations omitted); People v. Varela, 106 AD2d 339 (1st Dept. 1984)(dismissal in interest of justice not warranted based on defendant's "'exemplary' background at work, in the Air Force, as a father and as a civic affairs volunteer"). This is particularly so in this case, where this is only one of four indictments charging the defendant with abuse of the public trust.
Although the defendant alleges that the District Attorney of Kings County is employing a novel and erroneous theory of law allegations which this Court has rejected he does not allege that either the People or the police have engaged in any misconduct in the investigation and prosecution of this case. Thus, this factor does not compel dismissal on the ground of unfairness to the defendant. CPL § 210.40(1)(e). As was the case with Indictment 5617/03, the prosecution of a public official for allegedly larcenous conduct and abuse of the election process in this case can serve as a reminder that no one is above the law, CPL § 210.40(1)(f), and dismissal of the indictment under these circumstances would seriously undermine "the confidence of the public in the criminal justice system." CPL § 210.40(1)(g). This is particularly so, given the fact that the defendant remains in his official position, from which conduct such as that charged in this indictment and in the others against him, if proven to have occurred and to be criminal, could be repeated. CPL § 210.40(1)(h). Finally, the defendant has failed to present "any other relevant fact indicating that a judgment of conviction would serve no useful purpose." CPL § 210.40(1)(j).
Accordingly, the defendant's motion to dismiss the indictment in the interests of justice is denied.
DISCOVERY AND BILL OF PARTICULARS
The defendant moves for an order directing the People to respond to his Demands for a Bill of Particulars and for Discovery. The People have adequately responded to the defendant's Demand for a Bill of Particulars in their answer. The prosecution's response in their answering papers to the defendant's Demand for Discovery is also adequate except that the People are to set forth in full detail its agreement with Carmen Martinez, as disclosed in the grand jury during her testimony, and in any writing, should one exist, and any agreement with any other witnesses they intend to call at [*23]trial.
If the defendant believes that there is some other discovery to which he is entitled under CPL § 240.20 and which the People have failed to provide, he may renew this motion at a later date.
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 reminded of their continuing obligation to disclose to the defendant any exculpatory evidence in their possession pursuant to Brady v. Maryland, 373 U.S. 83
(1963), and its progeny, and that they are obligated to provide it to the defendant, if it exists, in a timely manner.
This constitutes the order and decision of the Court.
Dated: November 16, 2004 ______________________ MARTIN MARCUS J.S.C.
Footnotes
Footnote 1: In this case, William McCann, Special Deputy Counsel for the New York State Board of Elections, gave expert testimony concerning the New York State Election Law and the rules and regulations regarding elections. For purposes of determining whether Mr. McCann's testimony was properly received and limited, and whether the grand jury was properly instructed concerning his testimony, it is unnecessary to provide defense counsel with the relevant minutes. In this presentation, unlike the presentation in Indictment No. 5617/03, see People v. Norman, ___ Misc 2d ___ (Sup. Ct. Kings Co. 2004), 2004 WL 1964916, Mr. McCann was explicitly qualified as an expert before the grand jury, and the grand jury was properly instructed concerning its consideration of expert testimony. Mr. McCann was unquestionably qualified to offer the opinions elicited from him, which concerned matters beyond the grand jury's ken and that would aid the grand jury in making its determinations. Finally, the testimony he gave was properly limited.
Footnote 2: Penal Law §155.15(1) provides that "[i]n any prosecution for larceny committed by trespassory taking or embezzlement, it is an affirmative defense that the property was appropriated under a claim of right made in good faith." Noting, however, that such a claim is "the obverse of the contention that [the property was taken] with intent to deprive another of [the] property and to appropriate it to a third person," the Court of Appeals has held that placing the burden of proof for such a claim on the defendant would unconstitutionally shift the burden of proof for an element of the offense to the defendant. People v. Chesler, 50 NY2d 203, 209 (1980). Thus, a claim of right defense is simply a claim that the People have failed to prove one or more of the elements of larceny beyond a reasonable doubt.
Footnote 3: Compare the indictment in People v. Norman, ___ Misc 2d ___ (Sup. Ct. Kings Co. 2004), 2004 WL 1964916, in which the defendant was explicitly charged with grand larceny "by false pretenses." In this case, the People state in their bill of particulars only that "the theory of larceny is encompassed by P.L. § 155.05(2)(a)," which provides that larceny includes "conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses."
Footnote 4: For these purposes, a "candidate" includes a person who "seeks nomination for election ... to any public office ... to be voted for at a[n] ... election ... and an individual shall be deemed to seek nomination for election ... if he has received contributions or made expenditures, given his consent for any other person to receive contributions or make expenditures, with a view to bring about his nomination for election, to any office or position at any time whether in the year in which such contributions or expenditures are made or at any other time." Election Law §14-100(7)(2). Thus, the defendant was a "candidate" even though no election for the Assembly was held in 2001.
Footnote 5: Penal Law §175.10 provides that "[a] person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid in the commission thereof."
A person commits the crime of Falsifying Business Records in the Second Degree when, "with intent to defraud, he ... (4) [p]revents the making of a true entry or causes the omission thereof in the business records of an enterprise." Penal Law §175.05.
Footnote 6:See People v. Papatonis, 243 AD2d 898, 900 (3d Dept. 1997) ("What is complained of here are false answers to questions contained in an employment application submitted to Advance Security which, presumably, Advance Security has kept on file"). Although Election Law §14-122(1) requires the treasurer of a campaign committee to make "detailed account[s]" of any contributions received by any "officer, member or agent" of the committee "a part of the accounts and files of such treasurer ...," no testimony was elicited before the grand jury that the treasurer kept any such records other than the reports she filed with the Board of Elections, and no such records other than those reports were offered in evidence.
Footnote 7: The defendant does not challenge that either the Committee or the Board of Elections was an "[e]nterprise" within the meaning of Penal Law § 175.00(1), which defines that term, in pertinent part, as "any entity of one or more persons, corporate or otherwise, public or private, engaged in ... political or governmental activity." Each, in any case, is clearly an "enterprise."
Footnote 8: Without explanation, the decision in the Appellate Division makes reference to "bills" and "invoices," while the Court of Appeals decision refers only to a single "bill" and a single "invoice."
Footnote 9: See Penal Law §5.05(2) ("Unless otherwise expressly provided, or unless the context requires otherwise, the provisions of this chapter shall govern the construction of and punishment for any offense defined outside of this chapter ..., as well as the construction and application of any defense to a prosecution for such an offense"). It is also irrelevant that the crime, as defined, applies only to conduct of "[t]he treasurer of [a] political committee," Election Law § 14-102(1), since Penal Law § 20.05(3) provides that it is no defense to a prosecution predicated on Penal Law § 20.00 that "[t]he offense in question, as defined, can be committed only by a particular class or classes of persons, and the defendant, not belonging to such class or classes, is for that reason incapable of committing the offense in an individual capacity." See People v. Brody, 298 NY 352 (1949); People v. Irving, 107 AD2d 944 (3d Dept. 1985).
Footnote 10: In any case, because a claim of right is, in essence, a claim that the People have failed to prove that the defendant wrongly took property from an "owner," and that he wrongfully intended to deprive the "owner" of the property, the prosecutor's instructions to the grand jury deal sufficiently with a factually based claim of right if, as here, the instructions include these two elements of larceny. See People v Calbud, Inc., 49 NY2d 389, 394-95 (1980) (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").
Footnote 11: The applicable federal standard is similar. See United States v. Bahadar, 954 F.2d 821, 826 (2d Cir. 1992) (government required to grant defense trial witness immunity, or face dismissal of indictment, where "the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the fifth amendment;" the proffered testimony is "material, exculpatory, and not cumulative;" and it cannot be obtained "from any other source"). In United States v. Pinto, 850 F.2d 927, 935 (2d Cir. 1988), the Court observed that, "although our test for requiring the government to grant use immunity has been in place for at least eight years, we have yet to be presented with a case in which the defendant gets over the first hurdle, let alone succeeds entirely."
Footnote 12: Indeed, one court has gone even further, holding that "there is no constitutional right of defendant to balance against the District Attorney's discretion in granting or denying immunity before the Grand Jury." People v. Griffin, 135 Misc 2d 775, 778 (Sup. Ct. Kings Co. 1987).
Footnote 13: The defendant argues that because the People's theory of prosecuting Offering a False Instrument for Filing is unique, it requires additional pleading. Whether or not a unique theory of prosecution would require additional pleading, for the reasons previously stated, the People's theory is not novel.
Footnote 14: In full, Election Law § 14-126(2) states that "[a]ny person who knowingly and willfully fails to file a statement required to be filed by this article within ten days after the date provided for filing such statement or any person who knowingly and willfully violates any other provision of this article shall be guilty of a misdemeanor." Compare Election Law §14-126(1), which, without adding a mens rea requirement for the "fail[ure] to file a statement required to be filed by this article," establishes "a civil penalty, not in excess of five hundred dollars ..." which can be recovered only "in a special proceeding or civil action" brought by the New York State, or other Board of Elections.
Footnote 15: The People claim that counts 5 and 6, at least, direct the defendant to search in the Election Law, since they "allege that the defendant committed the specified crimes by failing to comply with sections 14-122 and 14-102 of the Election Law 'at the times and in the manner prescribed by Article 14 of the Election Law,' and 'as required by Article 14 of the Election Law.'" Even if it were enough for a count to direct the defendant to search an article of the law, rather than a specific provision of it, neither count contains such a direction. The fifth count, which charges the defendant with violating Election Law § 14-122, alleges that he did not report the contribution "as required by section 14-122 of the Election Law." Its only reference to the Election Law in general appears in an allegation concerning "all vouchers required by the Election Law," an allegation that relates to expenditures made, rather than contributions received, by a Committee, and which has no application to the facts of this case. The sixth count charges the defendant with receiving more than ninety-nine dollars on behalf of a political committee, and the Committee with failing to file statements "as required by Article 14 of the Election Law" setting forth all the contributions the Committee received. Thus, the reference in this count to Article 14 is a direction to the source of the requirement that statements be filed, and not to the location of the provision that criminalizes the failure to file them.
Footnote 16: Specifically, the People insist that count seven of the indictment, which charges the defendant with the conversion of the contribution to his own use must be read in conjunction with count one, which charges him with the commission of Grand Larceny in the Third Degree, and which requires a larcenous intent; that count five, which charges the defendant with having received a contribution and having failed to make a detailed accounting of it to the treasurer of the Committee, must be read in conjunction with counts two and three, which charge him with the crime of Falsifying Business Records in the First Degree, which requires an intent to defraud and an intent to commit or aid or conceal the commission of a crime; and that count six, which charges him with having failed to report the contribution to the New York State Board of Elections, must be read in conjunction with count four, which charges the defendant with Offering a False Instrument for Filing, and which also requires an intent to defraud.
Footnote 17: Although these counts are dismissed, evidence of their violation is nonetheless relevant in determining whether the crimes charged in the remaining counts were committed. Since Election Law § 14-130 prohibits the conversion of a political contribution to personal use, it is relevant to the allegation in count one that the defendant committed larceny by "wrongfully" taking, obtaining, or withholding the check, and whether the Committee was its "owner." Since Election Law §14-122 requires, inter alia, an agent of a political committee to give a "detailed accounting" of any contribution the agent receives, it is relevant to the allegation in count two that the defendant "prevented the making of a true entry and caused the omission thereof" in the Committee's records. Finally, since Election Law § 14-102 requires the secretary of a political committee to file with the Board of Elections statements of, inter alia, all contributions its agents receive, it is relevant in establishing the allegation in count four that the defendant caused a written instrument, the January Report, to be filed with the Board of Elections, knowing it contained a false statement or information.
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