People v Spaulding (LaFonda)

[*1] People v Spaulding (LaFonda) 2005 NYSlipOp 50555(U) Decided on April 15, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 15, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., ANGIOLILLO and COVELLO, JJ.
2003-1500 W CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

LaFONDA SPAULDING, Appellant.

Appeal by defendant from a judgment of the Justice Court, Town of Mount Pleasant, Westchester County (R. Ponzini, J.), rendered on October 16, 2003, convicting her of official misconduct (Penal Law § 195.00 [1]) and promoting a chain distribution scheme (General Business Law § 359-fff), and imposing sentence.

Judgment of conviction unanimously modified on the law by vacating the conviction of official misconduct, dismissing said count of the accusatory instrument, vacating the sentence imposed and remanding the matter to the court below for resentencing on the conviction for promoting a chain distribution scheme; as so modified, affirmed.

Viewing the evidence in a light most favorable to the prosecution (People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally insufficient to
establish defendant's guilt beyond a reasonable doubt of the charge of official misconduct (Penal Law § 195.00 [1]). The evidence failed to establish that the act of promoting a chain distribution scheme was related to defendant's position as a corrections officer so as to constitute an unauthorized exercise of her official functions (see People v Rossi, 69 AD2d 778 [1979]). However, the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt of the charge of promoting a chain distribution scheme (General Business Law § 359-fff) and the verdict of guilty was not against the weight of the evidence (CPL 470.15 [5]). The [*2]evidence adduced at trial established that defendant promoted or offered entry to a pyramid scheme to a co-worker at the county jail. We further find defendant's contention relating to the accomplice charge to the jury was not preserved for appellate review since defendant did not object to the supplemental charge (see CPL 470.05 [2]; People v Andre, 152 AD2d 589 [1989]). In any event, there is no proof that Wilson took part in the defendant's pyramid scheme as a principal or an accessory (see People v [*3]
Wheatman, 31 NY2d 12 [1972], cert denied 409 US 1027 [1972]). The court properly submitted the charge to the jury to determine whether or not Wilson was an accomplice as a matter of fact (see People v Rachles, 177 AD2d 357 [1991]).

Decision Date: April 15, 2005