People v Norman

[*1] People v Norman 2005 NY Slip Op 51533(U) [9 Misc 3d 1113(A)] Decided on September 12, 2005 Supreme Court, Bronx County Marcus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 12, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

CLARENCE NORMAN, JR., Defendant.



5588/03



the People were represented by Assistant District Attorneys Michael Vecchione, Kevin Richardson and Monique Farrell, Kings County District Attorney's Office, 16 Court Street, Brooklyn, NY; and the defendant was represented by Edward M. Rappaport, Esq., 16 Court Street, Brooklyn, NY.

Martin Marcus, J.

By letter dated July 22, 2005, the People notified the defendant and the Court of the evidence of uncharged crimes they were requesting to offer at the trial of the above-captioned indictment, which they allege the defendant committed in five different transactions specified in the notice. In their letter, they also gave notice that if the defendant testified at the trial, they were asking to question him about that same conduct as relevant to his credibility as a witness. In a joint Ventimiglia/Sandoval hearing conducted on August 10, 2005, the People presented to the defendant and to the Court documents relating to those transactions and provided additional details concerning them; the defendant presented, through counsel, factual allegations of his own concerning some of the transactions; and I heard argument from both sides concerning the People's requests. In an order dated August 16, 2005, I authorized the People to offer at trial evidence of some of these transactions, and precluded them from offering evidence of others; and authorized the People to question the defendant, should he testify at trial, concerning some of these transactions, but not others. This decision sets forth the reasons for those determinations.

THE PEOPLE'S VENTIMIGLIA APPLICATION

In this case, the defendant is charged with one count each of Offering a False Instrument for Filing [Penal Law §175.35], for presenting a false report to the Board of Elections, knowing the report contained "a false statement and false information" and with intent to defraud the Board; Falsifying Business Records in the First Degree (Penal Law §175.10), for preventing the making of a true entry and causing the omission of such an entry in the records of the Committee to Re-Elect Assemblyman Clarence Norman, Jr. ("the defendant's Re-Election Committee"), "with intent to defraud, and including the intent to commit another crime and to aid and conceal the commission thereof," and criminal violation of the Election Law §14-126(4) for "knowingly and willfully" soliciting a person to make expenditures in connection with his candidacy "for the purpose of evading the contribution limitations" of Article 14 of the Election Law. As reflected in the evidence before the grand jury, the People contend that the defendant, a candidate for re-election to the New York State Assembly in 2000 and 2002, asked the executive director of the New York State Association of Service Stations and Repair Shops ("the Association") to pay various of his campaign's expenses, in each year in excess of the amounts that the Association could lawfully contribute to the campaign; that, at the defendant's request, the executive director of the Association caused the Association to pay various invoices for expenses incurred in the defendant's campaigns in each of those years, and that the amount paid in 2000 exceeded the amount the Association could lawfully contribute to the campaign; that the defendant did not inform the treasurer of the defendant's [*2]Re-Election Committee that the Association had made these "in-kind" contributions; and that, as a result, the treasurer did not include them in the records of the Committee or in the reports she was required to file with the New York State Board of Elections ("the Board of Elections") in connection with those campaigns.

The People assert that the evidence of the uncharged crimes they seek to introduce is relevant to establish the defendant's knowledge and intent in the commission of the crimes charged, to negate claims of mistake, accident, and negligence, and to respond to the defendant's contention that any failure of the records of the defendant's Re-Election Committee and its reports to the Board of Elections to reflect the Association's in-kind contributions is attributable to the treasurer of his reelection Committee rather than to him. The defendant argues that there are innocent explanations for his conduct in each of these transactions, that none constitute knowing and willing violations of the Election Law, and that none is probative of any element of the crimes charged. He also asserts that admission of the evidence of these alleged uncharged crimes would be overly prejudicial to him.

As a matter of policy, evidence of uncharged crimes or bad acts is inadmissible to establish a person's propensity to engage in criminal behavior. People v. Ingram, 71 NY2d 474, 479 (1988); People v. Santorelli, 49 NY2d 241, 247 (1980), but when such evidence is relevant to a material issue, "[its] probative value ... justifies its admission notwithstanding the potential for incidental prejudice." Id., (citations omitted); see also People v. Hudy, 73 NY2d 40, 54-55 (1988). Although the Court of Appeals has "suggested certain 'categories' for use as a guide in evaluating the relevance of such evidence," the Court has made clear that these categories are illustrative rather than exclusive. People v. Santorelli, 49 NY2d at 248; People v. Vails, 43 NY2d 364 (1977); People v. Stanard, 32 NY2d 143 (1973). Specifically, proof of uncharged crimes or bad acts has long been admissible to establish intent or knowledge, People v. Molineux, 168 NY 264, 293-294 (1901), or absence of mistake. Id.; People v. Henson, 33 NY2d 63 (1973).

Evidence of an uncharged crime should not be admitted if the element which the People intend to prove by its admission is conclusively established by other evidence, People v. Ely, 68 NY2d 520, 529 (1986), as when, for example, "intent may be easily inferred from the commission of the act itself." People v. Alvino, 71 NY2d 233, 242 (1987)(citations omitted); see also People v. McKinney, 24 NY2d 180, 184 (1969)( "the probative 'balance' has generally warranted admission of [such] evidence only where the acts involved in the crimes charged are equivocal so that intention is not easily inferred from the acts alone"). In general, though, the People are not precluded from introducing such evidence merely because the People are able to establish a prima facie case without it, People v. Alvino, 71 NY2d at 245, and, in particular, evidence of uncharged crimes "may be admitted to prove intent ... when proof of the act falls short of demonstrating that the defendant acted with a particular state of mind and where proof of a prior act is relevant to that issue." Id.

Admissibility of such evidence does not necessarily turn on the defense advanced at trial, since the prosecution may "present all the admissible evidence available to them, regardless of the trial strategy defendant adopted." Id., citing People v. Marrin, 205 NY 275, 280 (1912). Moreover, "procedural orderliness generally mandates that a party adduce all its proof during its direct case," People v. Schwartzman, 24 NY2d 241, 249 (1969), citing 6 Wigmore, Evidence [3d ed.], § 1873, and it is considered "the better practice" that evidence of uncharged prior bad or criminal acts be introduced by the People on their direct case, rather than on rebuttal. People v. Schwartzman, 24 NY2d at 249. [*3]

Initially, whether the evidence of prior uncharged acts is admissible is a question of law, not discretion. People v. Alvino, 71 NY2d at 242; People v. Santorelli, 49 NY2d at 247. If the court determines that the evidence "is probative of a legally relevant and material issue," it must then exercise its discretion in determining whether the probative value of the evidence outweighs its potential prejudice. Id.; People v. Ely, 68 NY2d at 529 (1986); People v. Ventimiglia, 52 NY2d 350, 359 (1981).

(1) The Brooklyn Thurgood Marshall Democratic Club Check

In this case, the People's Ventimiglia application concerns five transactions in which they allege the defendant engaged. The first concerns the alleged theft of a $5000 check drawn on the account of the Brooklyn Thurgood Marshall Democratic Club, payable to the Committee to Re-Elect Clarence Norman, Jr. The People contend that this check was a contribution to the defendant's Re-Election Committee, that the defendant unlawfully converted it by depositing it in his personal checking account, and that he unlawfully caused the contribution to be omitted from the business records of the Committee and in a report of the Committee's activities to the Board of Elections. This conduct is the subject of Indictment No. 6435/03, which will be tried separately from the above-captioned indictment.

Although the People assert that proof of the offenses charged in Indictment 6435/03 would be "material and admissible as evidence in chief" in the trial of the above-captioned indictment, CPL § 200.20(2)(b), they chose neither to bring all the charges in one indictment, nor, having brought two separate indictments, to seek to consolidate them for trial. Neither have they chosen to try Indictment 6435/03 first, which would result in either an acquittal precluding admissibility of the evidence relating to that indictment in the trial of the above-captioned one, or a conviction which could be offered in evidence at this trial, CPL § 60.60(1), thus substantially reducing the amount of evidence the jury need hear concerning the charges for which the defendant would then stand convicted. Given the choices the People have made, considerations of judicial economy militate strongly against permitting the People to offer the evidence in this trial that they will offer again in the next. Thus, even assuming evidence of the crimes charged in Indictment 6435/03 would be admissible in the trial of the above-captioned indictment,[FN1] I exercise my discretion concerning the admission of relevant evidence of uncharged crimes by denying the People's request to admit this evidence at the trial of the above-captioned indictment. See People v. Alvino, 71 NY2d 233, 242 (1987)(admissibility of evidence, even if probative of issue before the court, still "turns on the discretionary balancing of the probative value and the need for the evidence against the potential for delay ...").

(2) The Friends of Major Owens Committee Checks

The second transaction concerning which the People ask to offer evidence is the defendant's alleged receipt of two checks in July of 2000, each in the amount of $3,000, drawn on the account of the Friends of Major Owens Committee ("the Owens Committee") and payable to the Brooklyn Thurgood Marshall Democratic Club ("the Club"), with the word "contribution" written on the [*4]memorandum line of each check; the defendant's deposit of these checks in his personal account, and his drafting of two checks, each drawn on that same personal account, and each for $3,000, payable to the Committee to Re-Elect Assemblyman Clarence Norman, Jr., which were recorded as personal contributions by the defendant to the Committee.

It is the People's theory that while the Owens Committee could and did lawfully contribute $6000 to the Club, neither the Owens Committee nor the Club could lawfully have contributed that amount to the defendant's Re-election Committee; and that the defendant, who had the authority to determine to whom the Club made contributions, concealed the Club's illegal contribution of $6000 to his Re-election Committee by making it appear as contributions he made from his personal funds, for which the Election Law sets no limit. The People maintain that this evidence establishes that the defendant was knowledgeable of the contribution limits under the Election Law; that by these transactions he knowingly and willfully evaded those limits; and that he intentionally did not inform the treasurer of his re-election committee of the true source of the contributions, so that they would not be reflected either in the records of the defendant's re-election committee or disclosed in the reports of the treasurer to the Board of Elections. It is an alternative theory of the People that the defendant stole the checks from the Club and contributed the proceeds of the theft to his Committee.

At the hearing, the defendant offered a different explanation for this conduct: that the Owens Committee owed money to the Club for its share of expenses for space utilized by both entities, but had no account from which to make the payments;[FN2] that, instead, the defendant's Re-election Committee gave the two checks in question to the Club on behalf of the Owens Committee, and that the defendant deposited the checks from the Owens Committee in his own personal account and re-paid his Re-election Committee with the proceeds. Noting that he has no control over how the Friends of Major Owens Committee reports its expenses, the defendant argues that this incident fails to establish any intent to defraud on his part or that any party had, in fact, been defrauded.

In this case, the defendant is charged with willfully soliciting in-kind contributions in an amount in excess of that permitted by the Election Law, and with intentionally causing those contributions to be omitted from the records of his Re-election Committee and reports submitted to the Board of Elections, with intent to defraud. Thus, the People must prove his knowledge of the limits the Election Law placed on contributions to his Re-Election Committee, his intent to conceal the in-kind contributions made by the Association, including his intent to defraud, and the absence of mistake in his alleged failure to report them to the treasurer of his Re-election Committee.

The People must prove these matters regardless of any defense proffered by the defendant.[FN3] [*5]While the evidence before the grand jury of the defendant's conduct with regard to the in-kind contributions is legally sufficient to permit a fact-finder to infer the requisite mens rea, see People v. Norman, 6 Misc 3d 1035(A), 2005 WL 3235776, **12 (Sup.Ct. Kings Co. 2004), this is not a case in which it is "conclusively established" by that evidence. People v. Ely, 68 NY2d 520, 529 (1986). Compare People v. Burton, 186 AD2d 672-673 (2d Dept. 1992)(proper to allow introduction of evidence that defendant, charged with falsifying business records in the first degree, falsified agreements not subject of prosecution to establish intent or the absence of mistake or accident because the "charges concern equivocal acts from which the defendant's intent may not be easily inferred"), with People v. Chamberlain, 38 AD2d 306 (3d Dept. 1972)(evidence of uncharged bad acts not admissible where "[t]here [was] no conceivable position that could be taken by the defendants which would make their actions equivocal ... [n]or did [they] advance any such position").

From evidence that the defendant deposited in his own account checks drawn on the Owens Committee and payable to the Club, in amounts that exceeded what the Club could lawfully contribute to the defendant's Re-Election Committee; and that he then wrote checks in the same amounts, drawn on his own account and payable to his Re-Election Committee which were treated as personal contributions by him to his campaign, a fact-finder could conclude that the defendant thus caused contributions to be made by the Club to his Re-Election Committee and concealed their true source from the Committee's treasurer and from the Board of Elections. Such "successive repetition of similar unlawful acts tends to reduce the likelihood of the actor's innocent intent on the particular occasion in question," Matter of Brandon, 55 NY2d 206, 211 (1982), see also People v. Ingram, 71 NY2d at 480 ("[i]t is the duplication of the inculpatory conduct which makes the innocent explanation improbable"). And this is so despite the fact that the conduct relating to the Owens Committee checks is not in all respects identical to that relating to the alleged in-kind contributions by the Association, since they are nonetheless sufficiently "similar in [their] gross features i.e., the same doer, and the same sort of act," to negate "innocent intent." Matter of Brandon, 55 NY2d at 213 (1982), quoting 2 Wigmore, Evidence [Chadbourn rev. ed.], §304, p.251. See also People v. Schwartzman, 24 NY2d at 248 (in case where defendant sold encumbered account receivable, evidence of other misrepresentations highly relevant on issue of intent to defraud).

While the defendant offers a different explanation for this conduct, and may present that explanation to the jury, the People's explanation is sufficiently more credible and consistent with the documentary evidence to warrant admission of this evidence at trial. First, assuming that the Owens Committee did owe money to the Club, using this mechanism to repay the debt appears unnecessarily cumbersome and indirect. Second, the defendant's explanation is supported neither by the treatment of the checks drawn on the Owens Committee in its records, which reflect them as contributions to the Club, or by the treatment of the defendant's checks in the records of the defendant's Re-election Committee or in its report to the Board of Elections, in which they were [*6]recorded as contributions by the defendant himself to the defendant's Re-Election Committee.

For these reasons, the People may offer at trial evidence that in July, 2000: (a) two checks, each in the amount of $3,000 were drawn on the Friends of Major Owens Committee and made payable to the Brooklyn Thurgood Marshall Democratic Club; (b) the checks were designated and reported by the Friends of Major Owens Committee as contributions to the Club; (c) the defendant received the two checks, but did not deliver them to the Club, and, instead, endorsed both checks and deposited them into his personal account; (d) the defendant subsequently wrote two checks payable to the Committee to Re-Elect Assemblyman Clarence Norman, Jr., each for $3,000 and drawn on his personal account; and

(e) the defendant represented the checks as his personal contributions to the Committee and the Committee reported them as such.

The People may not, however, attempt to prove or to assert before the jury that the defendant stole the two $3000 Owens Committee checks from the Club. Evidence before the grand jury in support of Indictment No. 6435/03 established that "all directions to make contributions [by the Club] to political organizations and candidate committees come from the defendant." People v. Norman, 5 Misc 3d 1016A, 2004 WL 2624644 (Sup.Ct. Kings Co. 2004), and the People have not [*7]presented any evidence to the contrary in their Ventimiglia application. Since it thus appears that the defendant had authority to cause funds of the Club to be contributed to his Re-Election Committee, they have no good faith basis upon which to argue that the defendant stole the money from the Club when he deposited the Owens Committee checks in his personal account and wrote checks drawn on that account and payable to the Committee in the same amount.[FN4]

(3) The AMS Corporate Services Checks

The third transaction about which the People ask to offer evidence concerns the defendant's alleged theft in August, 1999, of two checks, each in the amount of $1,700, drawn on the account of AMS Corporate Services. One check was payable to "Brooklyn Democratic Party" and was designated on its face as a contribution; the other was payable to "Clarence Norman Democratic Party" and had no designation. The People seek to prove that the defendant deposited these checks in his personal checking account in Kings County, wrote one check for $200 payable to cash, and another for $3,200 payable to himself, deposited that check in another personal account in Albany, New York; and then wired $3,200 from that Albany account to a third personal account in New York County.

The People maintain that the checks were intended as political contributions to either the defendant's Re-Election Committee or to the Kings County Democratic Committee, and not as payments to the defendant personally, and that by depositing them in his own account, he stole them from the intended payee or payees. Noting that AMS Corporate Services could not lawfully contribute $3,400 to either entity, but could lawfully contribute $1,700 to each, and that the defendant could make unlimited contributions to his own campaign, they argue that this evidence is relevant to establish that the defendant had knowledge of the campaign limitations set by the Election Law, that he intended to violate the limits on campaign contributions and the reporting requirements when he transferred the money into his own accounts, and that he acted with the intent to conceal this criminal conduct.

In contrast with the evidence relating to the checks drawn on the account of the Owens Committee, the People have proffered no evidence that the proceeds of these checks, after being transferred through the defendant's various accounts, made their way to the account of the defendant's Re-Election Committee. Thus, there is no evidence that these were concealed contributions to that Committee. While this evidence may support a conclusion that the defendant stole checks designated for his own Re-Election Committee or for the Kings County Democratic Party, it does not tend to demonstrate his knowledge of the Election Law contribution limits or evince an attempt to evade them, nor is it proof of a prior instance in which the defendant acted with the intent to defraud the Board of Elections or to falsify the business records of his Re-Election Committee. Thus, the conduct is not relevant to any elements of the crimes with which the defendant is charged, nor to demonstrating the absence of mistake in the conduct the People allege constitute those crimes. See People v. Foster, 295 AD2d 110 (1st Dept. 2002)(evidence of theft of [*8]another person's wallet had no relevance to element of charged crime, criminal possession of stolen credit card). Because the commission of a theft would bear only on the defendant's criminal propensity, the People may not offer evidence that the defendant engaged in this conduct at trial. People v. Ingram, 71 NY2d 474, 479 (1988); People v. Santorelli, 49 NY2d 241, 247 (1980).

(4) The I & S Consultants Check

The fourth transaction of which the People ask to offer proof at trial concerns a check in the amount of $2,500, drawn on I & S Consultants and made payable to the Brooklyn Thurgood Marshall Democratic Club, which the People contend was stolen by the defendant. According to the People's proffer: the treasurer of the defendant's Re-Election Committee received a $5,000 check from I & S Consultants made payable to the defendant's Re-Election Committee; the treasurer told Mr. Schlossburg of I & S Consultants that the contribution was in excess of the limits established by the Election Law, but suggested to him that he could lawfully make one contribution of $2,500 to the Committee and another to the Brooklyn Thurgood Marshall Democratic Club; she did, in fact, receive two checks from I & S Consultants in the form and amounts she had suggested; she deposited the check payable to the Committee in the Committee's account and reflected it as a contribution in the Committee's records and included it as such in the reports filed with the Board of Elections; she sent to the Club the $2500 check payable to it; she discussed these matters with the defendant; and the defendant deposited the $2500 check payable to the Club in his personal account and wrote and endorsed for payment a check for that same amount payable to cash.

Evidence of the treasurer's response to receipt of the initial $5,000 check from I & S, of her conversations with Mr. Schlossberg, of her receipt and treatment of the two $2500 checks, and of her conversations with the defendant concerning these matters, does not establish that the defendant committed a crime or a bad act. This evidence is, however, relevant to establish the knowledge of both the treasurer and the defendant of the contribution limits established by the Election Law and the obligation to avoid contributions to his Re-Election Committee in excess of those limits. People v. Scarola, 71 NY2d 769, 777 (1988)("Evidence is relevant if it has any tendency in reason to prove the existence of any material fact").

Moreover, there is no danger that the defendant will be unduly prejudiced by admission of this evidence, since it is not criminal in nature or in any respect a bad act. To avoid such prejudice, and because it is not relevant for the purposes outlined above, the People are precluded from offering proof that the defendant deposited the proceeds of the $2500 check payable to the Club in his own account and from asserting that he stole that check. As with the AMS Corporate Services checks, evidence that the defendant stole the $2500 check from the Club neither tends to demonstrate the defendant's knowledge of the Election Law contribution limits nor evinces an attempt to evade them, and it is not proof of a prior instance in which the defendant acted with the intent to defraud the Board of Elections or to falsify the business records of his Re-Election Committee.

Despite the defendant's claim to the contrary, this evidence is not inadmissible hearsay, since it is not being offered for the truth of its contents, see People v. Huertas, 75 NY2d 487, 491-492 (1990), but rather to establish the state of mind of the declarant, People v. Slaughter, 189 AD2d 157, 162 (1st Dept. 1993); see also People v. Reynoso, 73 NY2d 816 (1988); Mtr. of Bergstein v. Bd. of Education, 34 NY2d 318, 324 (1974), and the defendant's state of mind based on his conversation with her, since they are evidence of what the defendant knew about the Election Law contribution limits at the time of the commission of the crime. Mtr. of Bergstein v. Bd. of Education, 34 NY2d [*9]at 324; People v. Boyd, 256 AD2d 350, 351 (2d Dept. 1998); Garston v. MacMurray, 133 AD2d 442 (2d Dept. 1987).

For these reasons, the People may introduce on their direct case evidence that in June, 2000: (a) the treasurer of the Committee to Re-Elect Assemblyman Clarence Norman, Jr. received a check made payable to the Committee in the amount of $5,000 from I & S Consultants; (b) in a conversation with Mr. Schlossburg of I & S Consultants, she told him that the contribution exceeded the legal limit, but that he could make legal contributions of $2,500 each to the Committee and to the Brooklyn Thurgood Marshall Democratic Club; (c) she in fact received two checks from I & S Consultants for $2500, one payable to the Committee and one payable to the Club, and deposited the former in the account of the Committee and reported it as a contribution, and delivered the latter to the Club; and (d) she discussed these matters with the defendant.

(5) Other Crimes Arising from Charged Conduct

The conduct alleged in the fifth transaction set forth by the People is the subject of the above-captioned indictment. In their application, the People contend that by engaging in this conduct, the defendant committed, not only the felonies presently charged in the above-captioned indictment, but also two pair of misdemeanors. The People allege that the defendant committed one pair in connection with the 2000 reelection campaign, and one pair in connection with the 2002 campaign, by receiving a contribution in each campaign and failing 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; and by receiving in each campaign a contribution from a single contributor that amounted to more than ninety-nine dollars and failing to file a statement of its receipt, in violation of Election Law §14-102.

Prosecution of the first pair of crimes, those relating to the 2000 campaign, was barred by the statute of limitations when the above-captioned indictment was returned. CPL § 30.10(2)(c)("A prosecution for a misdemeanor must be commenced within two years after the commission thereof").[FN5] Counts charging the defendant with the second pair of crimes, those relating to the 2002 campaign, were originally included in the above-captioned indictment, but were dismissed by the Court because they failed to allege that the defendant engaged in the requisite conduct "knowingly and willfully." People v. Norman, 6 Misc 3d 1035(A), 2005 WL 3235776, **12 (Sup.Ct. Kings Co. 2004).

As noted in that decision, however, evidence of their violation is nonetheless relevant in determining whether the crimes charged in the remaining counts were committed. 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 five that the defendant "prevented the making of a true entry and caused the omission thereof" in the Committee's records. Since Election Law § 14-102 requires the treasurer 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 two that the defendant caused a written instrument, the January 2003 Report, to be filed with the Board of Elections, knowing it contained a false [*10]statement or information. And both are relevant to the allegation in count ten that the defendant "knowingly and willfully" solicited a person to make campaign-related expenditures for the purpose of evading the contribution limitations of Article 14.

Id., n. 15. The defendant does not challenge or oppose the admission of evidence that the defendant committed this pair of misdemeanors, or the pair the People allege the defendant committed in connection with the 2000 campaign. For all these reasons, the People may offer at trial evidence that the defendant committed these four misdemeanors.

THE PEOPLE'S SANDOVAL APPLICATION

The People ask to question the defendant, should he testify at trial, concerning these same five transactions.

As to the first transaction, given the Court's determination that the People may not introduce evidence of the alleged theft of the $5000 check that is the subject of Indictment No. 6435/03, should the defendant testify, he may not be questioned concerning this matter. A defendant who testifies on his own behalf may not be cross-examined concerning an unrelated pending criminal charge. People v. Betts, 70 NY2d 289 (1987).

As to the second transaction, given the Court's determination that the People may introduce evidence concerning the deposit of the proceeds of the Owens checks, and his writing of checks in the same amounts to his Re-Election Committee, if the defendant testifies, he may be cross-examined concerning these matters.

As to the third transaction, the People also ask to cross-examine the defendant, should he testify at trial, about his alleged theft of the two checks drawn on the account of AMS Corporate Services, one payable to "Brooklyn Democratic Party," designated on its face as a contribution, and the other payable to "Clarence Norman Democratic Party," without such a designation. The defendant argues that the payees designated on these checks do not exist, and that it is impossible to determine who the intended recipients of the money were and whether the defendant had authority to deposit the checks in his own account. Accordingly, he insists that the People have no basis to introduce this evidence as evidence of a theft. The defendant also argues that this evidence is, in any case, stale and unduly prejudicial.

Larceny has long been recognized as a bad act that bears on a witness's credibility, and thus as a proper subject of cross-examination for that purpose. People v. Sandoval, 34 NY2d 371, 377 (1974)("commission of ... crimes or acts of individual dishonesty, or untrustworthiness [e.g., offenses involving theft ... or breach of trust] will usually have a very material relevance, whenever committed"); People v. Sullivan, 201 AD2d 518 (2d Dept. 1994)("evidence of [theft of property] was highly probative of the defendant's credibility and his willingness to deliberately further his own self-interest at the expense of society's interests"). And this theft, allegedly committed six years ago, is not so remote in time as to be irrelevant for this purpose. Despite the lack of clarity concerning the intended payees, the People's proffer provides a factual basis for asking the defendant whether he stole the proceeds of these checks. Given the names of the payees designated on the checks and the designation of one of them as a contribution, it is unlikely that these checks were intended for the defendant personally. Moreover, the defendant's odd treatment of the proceeds of the checks as documented by the People depositing these checks in his personal checking account in Kings [*11]County, writing one check for $200 payable to cash, and another for $3,200 payable to himself, depositing the latter check in another personal account in Albany, and then wiring $3,200 from that account to a third personal account in New York County permits the inference that he intended to conceal the transaction. Finally, the defendant has offered no alternative explanation for this matter, reporting only that he does not recall anything about the payees or purposes of the checks.

As to the fourth transaction, if the defendant testifies, the People may ask him whether he stole the $2500 check drawn on the account of I & S Consultants and payable to the Club by depositing it in his own account and then writing and cashing a check drawn on that account in the same amount. As already indicated, the commission of an uncharged theft is relevant in assessing the credibility of a witness.

Finally, as to the fifth transaction, the defendant does not challenge the propriety of the People questioning him, should he testify at trial, concerning whether he engaged in conduct constituting the crimes with which he is charged, even though the People contend that this conduct also constituted the commission of the four uncharged misdemeanors. The

People may do so.

This constitutes the order and decision of the Court.

Dated: September 12, 2005 MARTIN MARCUS

J.S.C. Footnotes

Footnote 1: In any case, for reasons set forth below in resolving the remaining aspects of the People's Ventimiglia application, had I considered this aspect of the application on the merits, I would have determined that evidence of this transaction, in which the defendant allegedly stole the proceeds of a check, was not admissible as part of the People's case in chief.

Footnote 2: The defendant explained that because the Club had originally been named the "Thurgood Marshall Democratic Club," and another pre-existing entity had the same name, the Club had been required to change its original name to the "Brooklyn Thurgood Marshall Democratic Club," requiring the creation of a new bank account or a change in the name of its current one.

Footnote 3: Significantly, the defendant asserted in his omnibus motions that the evidence before the grand jury failed to demonstrate that he knew the reports submitted to the Board of Elections were false, that he caused the treasurer to omit information about the in-kind contributions from the reports, that he is responsible for any false entries in the business records of his Re-Election Committee, and that any violations of the Election Law were willful. See People v. Cunningham, 306 AD2d 627 (3d Dept. 2003)(where defendant charged with forgery and criminal possession of forged instrument contested issue of intent and suggested he had authority to sign checks, not error to permit proof of prior conviction for falsifying business records because proof of prior crime "was relevant to the issue of intent and ... the probative value outweighed the potential for prejudice").

Footnote 4: In any case, the theory that the defendant stole the checks and then contributed the money from his own checking account to his Re-Election Committee is inconsistent with the People's first theory, which is more consistent with the evidence they have proffered, that the defendant structured the transaction to conceal a contribution from the Club that exceeded the contribution limits.

Footnote 5: The various exceptions to this limitation set forth in CPL § 30.10(3) have no application here, and no periods of time are subject to exclusion from this limitation pursuant to CPL § 30.10(4).