People v Rosado

[*1] People v Rosado 2008 NY Slip Op 50388(U) [18 Misc 3d 1140(A)] Decided on January 17, 2008 Supreme Court, New York County Goldberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2008
Supreme Court, New York County

The People of the State of New York

against

Odalis Rosado, Defendant.



9201/99



For the People: Assistant Attorney General Rhonda Greenstein

For Defendant: Ramon A. Pagan, Esq.

Arlene D. Goldberg, J.

The defendant was convicted, after jury trial, of two counts of scheme to defraud in the first degree (PL§190.65 [1][a], [1][b]), nine counts of grand larceny in the

third degree (PL§155.35) and multiple counts of intentional real estate securities fraud and other crimes under the General Business Law.[FN1]In sum, the convictions arose from evidence that defendant, a church deacon, obtained property from his parishioners and others, by duping them into purchasing bogus time shares in the premises known as Playa Bonita in the Dominican Republic.

The trial judge sentenced defendant to an aggregate indeterminate term of imprisonment of ten to thirty years and ordered that he pay 3.2 million dollars in restitution.

The defendant appealed his conviction and the Appellate Division, First Department modified it to the extent of reducing his sentence to an aggregate term of five to fifteen years, vacating the order of restitution and remanding the matter for a restitution hearing pursuant to Penal Law § 60.27(2). See, People v. Rosado, 28 AD3d 215 (1st Dept. 2006).

The Appellate Division concluded that before ordering restitution, the sentencing court should have conducted a hearing to determine the appropriate amount since the record did not contain sufficient evidence to support such finding. Id. at 217. In that regard, the Appellate Division stated that,

"[t]he restitution figure proposed by the People [3.2 million] was not based

entirely on the trial evidence, but was also based upon the Assistant

Attorney General's unsworn summary of the amounts invested by persons

who did not testify at trial, resulting in the dismissal of the counts relating [*2]to

those investors, as well as upon an estimation of the amount the investorswould have received if the project had performed in accordance withdefendant's representations." Id.

The Restitution HearingPursuant to the Appellate Division's Order, I conducted a hearing to determine the appropriate amount of restitution.[FN2]At that hearing, the People called eleven witnesses and introduced into evidence numerous documents, as well as the trial record, the grand jury minutes, bank records and various files with documents from the Assistant Attorney General's case file that she maintained in connection with the prosecution of the defendant for the Playa Bonita scheme. The defense did not call any witnesses but entered some exhibits into evidence. Arguments by the parties were made by written submissions.[FN3]

Based upon my review of all of the evidence, the arguments that were made during the hearing, the parties' submissions and the relevant case law, I made findings as to the loss various victims sustained due to defendant's crimes. These amounts were set forth in a written order, dated July 24, 2007. Defendant then requested a hearing on the issue of his ability to pay. Proceedings on that issue were held on August 27, 2007 and subsequent court dates and defendant was the only person to testify. The defense additionally entered many documents into evidence, including the defendant's 2006 tax return, a financial disclosure form, and defendant's bank records. In December, the defense requested additional time to obtain proof that the defendant had monetary judgments that had been entered against him and to file an amended financial disclosure affidavit. The Court received the submission on January 8, 2008.

What follows, in PART ONE (sections I through IX) is the written explanation for my findings on the amount of loss that was sustained by various victims. This writing also supplements the oral record that I made on July 24, 2007 regarding some of the evidentiary and other issues that were raised by the parties at the hearing.[FN4] In PART TWO, I set forth my determination as to defendant's ability to pay and the manner of payment.

PART ONE [*3]

IThere were twelve victims that testified at the trial. Three of them also testified at the restitution hearing. Another witness at the restitution hearing, Candalaria Medrano Rivera, had testified before the grand jury that voted the indictment in this case but not at the trial. As a result, the two counts of the indictment in which she was the named victim were dismissed by the trial court. Four others who testified at the restitution hearing about their losses from investing in Playa Bonita had not testified at any prior proceeding in the case and were not named victims in the indictment. Two restitution hearing witnesses testified about their respective parent's losses from investing in Playa Bonita. Neither parent was a named victim in the indictment nor had they testified at any prior proceeding.

The People seek restitution for all of these defrauded investors as well as for Isidre Marte and Carlos Rojas, both of whom testified in the grand jury that voted the indictment in this case but not at the trial. As with Candalaria Medrano Rivera, the counts of the indictment in which they were the named victims (two counts for each of them) were dismissed by the trial court. The People also seek restitution for Francis Vilomar, who was not named as a victim in the indictment and did not testify at any prior proceeding in the matter. Mr. Vilomar was also not called to testify at the restitution hearing, but submitted a sworn statement about his loss together with the receipt for the money he gave to defendant for an apartment at Playa Bonita.[FN5] The People additionally seek restitution for individuals specified in the JP Morgan Chase Bank records for Playa Bonita [FN6], and for other victims for whom the People claim to have documentation in their case file that they entered in evidence.[FN7]

The defendant opposes restitution for individuals who did not testify at trial for reasons that will be discussed below. He additionally claims that the People have failed to meet their burden of proving "set-offs" in accordance with the Court of Appeals decision in People v. Tzitzikalalis, 8 NY3d 217 (2007). Defendant further maintains that the People have miscalculated the out of pocket losses for persons who did testify at trial and/or at the restitution hearing.

II

Victims who testified at the Trial and at the Restitution Hearing [*4]

Edwin Gutierrez, Carmen Medrano and Melba Recio [FN8] were the three victims that testified both at the trial and at the restitution hearing. With respect to these three witnesses, I find that the People have proven by a preponderance of the evidence that they are entitled to restitution in the amounts specified below for the out of pocket losses they incurred as a result of defendant's criminal acts.

Edwin Guttierrez' stestimony [FN9] established that he invested $6000.00 for an apartment in Playa Bonita but never received it. He also never received any return on his investment as the two checks that he was shown (defendant's exhibits A and B in evidence) as representing such return were kept by the defendant to reinvest in Playa Bonita.[FN10] I conclude thatEdwin Guttierrez' out of pocket loss is $6000.00.

Carmen Medrano's testimony [FN11] established that she paid defendant $3000.00 for an apartment at Playa Bonita that she never received. When asked on direct at the restitution hearing, "And did you ever receive your money back?", Ms. Medrano responded, "No ma'am." (RH 28.) On cross-examination, however, she stated that she received "$90 two times" (RH 34) and was told by the defendant, "that is a gift from me to you." (RH 34.) Defense counsel attempted to impeach her with her trial testimony regarding the amount of money she got back. She acknowledged that she testified at trial that she received $180.00 but denied that she twice received that amount. "No. No. No. Hundred eighty dollars twice, no. It was $90." (See RH 35-36.) At trial, Ms. Medrano also testified that she was told the payments were gifts from the defendant. I find that Carmen Medrano only received a total of $180.00 from the defendant (two payments of $90.00 each).[FN12]Therefore, I find that Carmen Medrano's out of pocket losstotals $2820.00.

Melba Recio testified at the restitution hearing that she invested a total of $28,000 in Playa Bonita, having paid $4000 to the defendant on one date and $24,000 [*5]on another, which is consistent with the amounts she gave at trial and the receipts that were entered in evidence.[FN13]Ms. Recio, who like the others never received an apartment at Playa Bonita, testified at the restitution hearing that the only money she got from the defendant was $118.00 per month for eleven months so that she could pay her telephone and electric bills. At trial, however, she testified that the defendant paid her $218.17 each month for six months (TT 1039, 1043)[FN14], and that she additionally received $2000.00 from the defendant after telling him that she needed money because she borrowed money due to her mother's death. (TT 957,1036.) Although Ms. Recio testified that she did not recall giving such testimony at the trial, she did not actually deny that she received those sums, which total $3309.02, only that she didn't remember if she did. (RH97.)Additionally, at trial, Ms. Recio testified that $1000.00 of the $28,000.00 she had paid was returned to her so that her total investment was $27,000.00 (TT 935, 944, 971, 1009 - 1010 ). Although defense counsel did not elicit this when he cross-examined her at the restitution hearing and the People make no mention of it in their submission, it would not be appropriate to overlook this $1000.00 that was returned to her in computing her out of pocket loss. I conclude that Melba Recio's out of pocket loss is $23,690.98 ($28,000 less $4309.02).

III

OTHER VICTIMS WHO TESTIFIED AT TRIAL

BUT NOT AT THE RESTITUTION HEARING

There were nine other victims who testified at the trial - Marina Adames [FN15], Felicita Aguilar, Juan Fernandez, Frank Ferrerairs, Jose Agustin Franco, Dante Jiminez, Agustin Matias, Maria Mercedes, and Socorro Rosa. Although none of these victims testified at the restitution hearing, the trial record, which was admitted in evidence by the People, shows that they all testified under oath and recounted their investments in Playa Bonita and were extensively cross examined regarding same by defendant's trial counsel. The issue of whether any of them received the apartment or return of any money was also fully explored at trial.

With respect to these nine victims, I conclude that the People have proven by a preponderance of the evidence that they are entitled to restitution in the amounts specified below for the out of pocket losses they incurred as a result of [*6]defendant's criminal acts.

Marina Adames' out of pocket loss is $4000.00 as her trial testimony establishes that she invested $5000.00 in Playa Bonita and received $1000.00 back. ( TT 218-236.)

Felicita Aguilar's out of pocket loss is $5000.00 as her trial testimony establishes that she invested $6000.00 in Playa Bonita and received $1000.00 back. ( TT 1657 - 1762.)

Juan Tomas Fernandez's out of pocket loss is $6000.00 as his trial testimony establishes that he invested $6000.00 in Playa Bonita and got nothing back.

(TT 1068-1152).

The Assistant Attorney General's submission contends thatFrank Ferrerairs' out of pocket loss is $36,000.00, apparently adopting the high end of Mr. Ferrerairs' estimate that his losses totalled between $30,000.00 and $36,000.00 dollars (TT 456).However, a review of his entire testimony, demonstrates that his investment in Playa Bonita amounted to $32,000.00 [FN16]and that he got nothing back.(TT 369 - 694.) Therefore, I find that Frank Ferrerairs' out of pocket loss is $32,000.00.

Jose Agustin Franco's [FN17] out of pocket loss is $6000.00 as his trial testimony establishes that he invested $6000.00 in Playa Bonita and got nothing back. (TT 1239 -1289.)

Dante Jiminez had an out of pocket loss of $4600.00 as his trial testimony establishes that he invested $6000.00 in Playa Bonita and got $1400.00 back. (TT 1769-2213.)

The People's submission indicates that Augustin Matias' invested $21,000.00, got $9000.00 back, and therefore had a $12,000.00 loss. However, the trial record demonstrates that Mr. Matias' investment in Playa Bonita totalled $30,000.00. As he did get $9000.00 back, Augustin Matias' out of pocket loss is $21,000.00. (TT 1399 -1560.)

Maria Mercedes' out of pocket loss is $8,640 as her trial testimony establishes that she invested $9000.00 in Playa Bonita and all she received back was $360.00; the balance of a single check for $600 from which defendant deducted $240.00 "for taxes and things over there." ( TT 1561-1657, quote at 1576.)

The People's submission indicates that Socorro Rosa [FN18] got nothing back for her $15,000.00 investment in Playa Bonita and therefore they calculate her loss to be $15,000.00. However, Ms. Rosa's trial testimony shows that she did receive some [*7]money back in the form of monthly checks for a period of ten months. (TT 1183-1237.) She initially stated that the checks were for $244.45 (id., at 1202) but later stated that they were for $244.20 (id., at 1229). I will utilize the higher figure as the amount that Ms. Rosa received in each of the ten monthly checks, and therefore find that the money she got back totals $2444.50 ($244.45 X 10 ). As such,I find that Socorro Rosa's out of pocket loss is $12,555.50.

IV

RESTITUTION HEARING WITNESS CANDALARIA MEDRANO RIVERA

Ms. Rivera, who had testified in the grand jury in the matter, was the victim specified in counts five and nineteen of the indictment, which charged, respectively, intentional real estate securities fraud (GBL § 352 c [6]) and grand larceny in the third degree (PL § 155.35). Those counts were dismissed by the trial court since she did not testify at the trial. Defendant maintains that since the counts were dismissed, this Court is precluded by the Appellate Division decision on defendant's appeal, (People v. Rosado, 28 AD3d 215, supra), from considering Ms. Rivera's restitution hearing testimony because the Appellate Division "ruled that it was improper to base restitution for this case on victims' whose counts were dismissed for their lack of testimony." See, Pagan Memorandum of Law at 6. This argument is rejected.

The fact that the counts were dismissed does not constitute a procedural bar to Ms. Rivera testifying at the restitution hearing concerning her losses or to the court considering her testimony, and the Appellate Division did not rule otherwise. The Appellate Division merely concluded that the prosecutor's unsworn summary of the losses sustained by investors who did not testify at the trial was an insufficient basis upon which to determine restitution.

At the restitution hearing, Ms. Rivera testified [FN19] that she had purchased two time shares in Playa Bonita for $6000 but never received any apartment. She did, however, get $600.00 back from the defendant after shedemanded moneyfrom him. Receipts for her payments and the cancelled $600.00 check were admitted in evidence. I find that the People have proved that Candelaria Medrano Rivera's out of pocket loss is $5400.00V

FOUR OTHER VICTIMS WHO TESTIFIED AT THE RESTITUTION HEARING

Ruben Baez, Hilda Henriquez, Jose Estrella and Abraham Estrella testified at the restitution hearing concerning their losses from purchasing time shares in Playa Bonita from the defendant.[FN20] They had not testified at any prior proceeding nor were they specifically named victims in the indictment.

The defendant maintains that these four individuals are not entitled

to restitution because they do not constitute victims in this case. The contention is primarily premised on the claim that an individual must be named in the indictment to [*8]be a victim eligible for a restitution award. I find these contentions are without merit.

Pursuant to Penal law § 60.27 (1) a Court may "require restitution or reparation [to the victim of the crime] as part of the sentence imposed upon a person convicted of an offense." Section (4)(a) of Penal Law § 60.27 provides a broad definition of the term offense. In pertinent part, it states that: "[f]or purposes of the imposition, determination and collection of restitution or reparation . . . (a) the term offense' shall include the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction. . ."

As recognized in People v. Prewett, 126 AD2d 86 (3rd Dept. 1987), appeal dismissed, 70 NY2d 693 (1987), the statutory definition of offense was "clearly designed to expand the remedies available to victims of crime other than the subject(s) of the actual conviction." Additionally, as the Court observed in that case, a narrow construction of the term offense would serve to exclude from obtaining restitution those who were victims of the defendant's fraudulent conduct simply because they were not included within the scope of the indictment. The Court found that such a construction was at odds with the statute's language and purpose and held that "the term offense' is not limited to transactions that comprise an actual criminal charge, but extends to any illegal conduct that constitutes part of the same criminal transaction." Id. at 89.

In this case, it is obvious from the respective testimony of these four witnesses at issue, that they, like the victims who testified at trial, purchased time shares in Playa Bonita from the defendant and were each thereby defrauded out of their money. Each is therefore a victim of an offense that is part of the same criminal transaction and accordingly may obtain restitution for their respective losses.

Moreover, defendant's objection to the court considering these four witnesses claims for restitution completely overlooks the fact that among the 23 counts of which defendant was convicted were two counts of scheme to defraud in the first degree n (counts 14 and 15 of the indictment) and one count of Intentional Real Estate Securities Fraud (count 1 of the indictment). The scheme that formed the basis for these counts is one and the same that these four witnesses fell victim to during the same period charged in the indictment. The witnesses do not cease to be victims of the scheme charged in these counts simply because the Assistant Attorney General Attorney did not call them at trial.[FN21]

Based on the evidence at the restitution hearing, I conclude that the People have proven by a preponderance of the evidence that Ruben Baez, Hilda Henriquez, Jose Estrella and Abraham Estrella, are entitled to restitution in the amounts specified below for the out of pocket losses they incurred as a result of defendant's scheme to defraud.

Ruben Baez testified at the restitution hearing that he purchased two

time shares at Playa Bonita for $6000.00 and the receipt for his payment was entered into evidence. He did not receive an apartment or any return on the investment. On [*9]cross examination, he admitted that at one point the defendant showed him a fax copy of a check for 24,000 Dominican Pesos for his earned interest. However, he testified that he was never given the check nor did he ever receive any money from the defendant. I find that Ruben Baez got nothing back and that his out of pocket loss is $6000.00.

Hilda Henriquez testified that she invested $6000.00 in Playa Bonita

and the receipts she received for that investment were admitted in evidence. She never received any unit or any money back. I find that Hilda Henriquez had an out of pocket loss of $6000.00.

Jose Estrellatestified that he had invested $24,000.00 in Playa Bonita and the documents regarding his purchase were admitted in evidence. He never received the property or any money back from the defendant. Additionally, while he acknowledged that defense exhibits C, D and E were checks that had been made out to him and which he had seen before, he testified that he was never given the checks or money from the defendant. I find thatJose Estrella got nothing back and that his out of pocket loss is $24,000.00.

Abraham Estrellainvested $8000.00 in Playa Bonita. His bank checks and the receipts he received for his investment were admitted in evidence. He never received any unit or any money back as the check for $714.86 that he was shown was reinvested in the project and left at the Playa Bonita office. I find that Abraham Estrella got nothing back and that his out of pocket loss is $8,000.00.

V I

WITNESSES WHO TESTIFIED AT THE RESTITUTION HEARING ON

BEHALF OF A PARENT

At the restitution hearing, defense counsel objected to Ava Levine, the daughter of Playa Bonita investor Victor Romero, and Aminta Nunez, the daughter of Playa Bonita investor, Julia Nunez, being allowed to testify because neither witness constitutes a victim as defined by PL§60.27 (4)(b).[FN22] Defense counsel reasserts this claim in his written submission essentially contending that the Court cannot base a restitution award on the testimony of non-victims.The People asserted that there was no legal impediment to either witness being allowed to testify regarding their parent's investments and losses in Playa Bonita since hearsay is admissible at a restitution hearing. As such, the People argue that the hearsay nature of any testimony would only go to the weight of the evidence and not to its admissibility. Defendant, citing People v. Consalvo, 89 NY2d 140 (1996), maintains that at a restitution hearing a defendant must be afforded the opportunity to challenge the evidence. He argues that allowing hearsay testimony concerning alleged losses incurred by investors in Playa [*10]Bonita deprives him of that right.

Contrary to the defendant's claims, the fact that the daughters are not victims or a representative of a victim within the meaning of PL §60.27 (4)(b) did not disqualify them from testifying at the restitution hearing. It only makes them ineligible to be the subject of any restitution award since, pursuant to the statutory scheme, the court can only order that restitution be paid to the victim or representative of the victim. See, PL §60.27.

There is simply no requirement that proof of the out of pocket loss be supplied solely by the victim of the crime or by non-hearsay evidence. In fact, it is well settled that hearsay is admissible at a restitution hearing. See e.g., People v. David N., 140 AD2d 460 (2nd Dept. 1988); People v. Francis L.M., 278 AD2d 919 (4th Dept. 2000), leave denied, 97 NY2d 754 (2002); People v. Chaulk, 192 AD2d 669 (2nd Dept. 1993); leave denied, 81 NY2d 1071 (1993); Matter of J.S., 15 Misc 3d 855 (Fam Ct, Nassau County.2007). Furthermore, Penal Law § 60.27 (2) specifically provides that a hearing to determine the amount of restitution shall be conducted in accordance with §400.30 of the Criminal Procedure Law. CPL § 400.30(4) states:

"At any hearing held pursuant to this section the burden of proof

rests upon the people. A finding as to the amount of the defendant's

gain from the commission of the offense must be based upon apreponderance of the evidence. Any relevant evidence, not legallyprivileged, may be received regardless of its admissibility under theexclusionary rules of evidence."

I therefore reject the defendant's claim that the daughters' testimony was inadmissible and should be disregarded. Additionally, the fact that neither parent, Victor Romero or Julia Nunez were specifically named as victims in the indictment is not a disqualifying factor for the same reasons discussed in Section V of this decision.

Ada Levine testified that over the years she had conversations with her father, Victor Romero, in which he mentioned having invested $10,800.00 in Playa Bonita. However, she had no supporting documentation or any other evidence to support the claim that $10,800.00 was the amount of the investment and the letter from her father asking that she be permitted to stand in for him at the restitution hearing did not contain such information. Additionally, the receipt that the People introduced in evidence showed that Mr. Romero had paid a total of $2150.00 for an interest in an apartment at Playa Bonita. I therefore find that the evidence is only sufficient to establish an investment totalling $2150.00. Ms. Levine's testimony that her father did not receive title to an apartment or any money back is credited in full. Therefore, I find that the People have established that Victor Romero had an out of pocket loss of $2150.00.

Aminta Nunez gave testimony at the hearing which I found to be completely credible. She testified that she knew that her mother, Julia Nunez, had invested $20,000.00 in Playa Bonita because her mother discussed it with her and also because she often listened in on her mother's telephone conversations with the [*11]defendant, who she knew from church. She also knew that her mother had not received any money back. The receipts that her mother had received for the money she invested in Playa Bonita and other supporting documents were entered in evidence. Additionally, the letter Julia Nunez wrote explaining her inability to appear at the restitution hearing states that the amount she invested was $20,000.00.Therefore, I find that there is credible and sufficient proof that Julia Nunez had invested $20,000.00 in Playa Bonita. As the evidence also sufficiently establishes that Julia Nunez did not receive any apartment or any money back, I find that the People have proved that Julia Nunez had an out of pocket loss of $20,000.00.

VII

CARLOS ROJAS and ISIDRE MARTE

Carlos Rojas and Isidre Marte were Playa Bonita investors who had testified in the grand jury but not at the trial. As a result, the counts of the indictment in which they were the named victims were dismissed by the trial court. (Counts 10 and 27 as to Mr. Rojas and Counts 9 and 23 as to Ms. Marte.)Defendant's contention that the dismissal of the counts makes them ineligible for restitution is rejected for the same reasons previously discussed regarding Candelaria Medrano Rivera in section IV of this decision.Defendant additionally claims that the grand jury testimony of Mr. Rojas and Ms. Marte, who were not called at the restitution hearing, cannot form the basis of a restitution award since defendant never had the opportunity to cross-examine them. According to the defendant, without such opportunity, he is deprived of his right to challenge the evidence at a restitution hearing, which People v. Consalvo, supra, holds he's entitled to do.

There can be no doubt that the defendant has the right to challenge the evidence. However, that right does not impose any duty on the People, at a restitution hearing, to produce witnesses for the defendant to confront and cross-examine in order to establish the out of pocket losses incurred by the victims of defendant's criminal acts. Additionally, although cross-examination is an important means of challenging evidence, it is not the exclusive means of doing so. Furthermore, as previously discussed, the standards set forth in PL§ 400.30 govern restitution hearings. The statute permits the People to satisfy their burden through the production of relevant evidence, which, can consist of hearsay. In Matter of J.S., supra., the court observed that the admission of hearsay evidence to establish restitution "leaves the Respondent without any effective cross-examination and probably without any defense to restitution whatsoever." The court nevertheless ruled that, as with a criminal case, hearsay evidence was admissible to establish restitution in a juvenile delinquency proceeding and that the remedy, if any, must come from the Legislature and not the Court.

In People v. Hendrickson, 227 AD2d 801 (3rd Dept 1996),the records of the

Crime Victims Board establishing the amounts of its claims was held to be sufficient at a restitution hearing. In contrast, unsworn victim impact statements have been held to be insufficient. See e.g., People v. Young, 281 AD2d 950 (4th Dept. 2001), leave denied, 96 NY2d 909 (2001); People v. White, 266 AD2d 831 (4th Dept. 1999); People v. Welsher, 154 AD2d 915 (4th Dept. 1989). In People v. Peters, 299 AD2d 663 (3rd [*12]Dept. 2002) the lower court based its finding of restitution, in part, on the grand jury minutes. The Appellate Division did not state that this was improper but remitted for a restitution hearing because the grand jury minutes relied upon by the County Court were not part of the record on appeal. As such, the Appellate Court found that there was insufficient evidence in the record to support the amount of restitution that had been ordered.

In the instant case, a hearing has been conducted to determine the out of pocket losses sustained by victims of defendant's crimes and the grand jury minutes have

been entered into evidence by the People as part of the proof on the issue. Thus, the grand jury minutes are a part of the record that would be available for Appellate review on the issue of whether there is adequate evidentiary support for my restitution findings.

Carlos Rojas' sworn grand jury testimony establishes that he gave the defendant $36,000.00 for an apartment in Playa Bonita and documentation of his investment was entered into evidence in the grand jury. He testified that he never received title to an apartment. His grand jury testimony also shows that he did not receive any money back because he had to give the defendant back the check that the defendant had shown to him as payment of the balance due on the apartment purchase. (GJ 11/29/1999 at 9 through 20 (This scenario mirrors what occurred with other Playa Investors that testified at the restitution hearing and/or at the trial of the matter.)

I find that the People have proven by a preponderance of the evidence that Carlos Rojas' out of pocket loss is $36,000.00.

Isidre Marte testified in the grand jury (GJ 11/22/1999 at 64 through 70) that she gave the defendant $3000.00 for a one month share in an apartment at Playa Bonita. Documentation of her purchase was entered into evidence in the grand jury. She further testified that she never received title to an apartment. However, no testimony was elicited in the grand jury on whether or not Ms. Marte received any money back. The defendant asserts that the People have therefore failed to prove offsets pursuant to the holding in People v. Tzitzikalalis, 8 NY3d 217, supra, thereby leaving the Court without a basis upon which to calculate Ms. Marte's out of pocket loss. The People take the view, for stated reasons, that People v. Tzitzikalalis does not apply to this case. It is not necessary to decide the issue since it can be inferred from the totality of Ms. Marte's grand jury testimony and other evidence presented at the restitution hearing that she did not receive any money back. Specifically, the Playa Bonita contract reflecting Ms. Marte's purchase, which is contained in the prosecutor's case file that was received in evidence, demonstrates that she purchased her 1/12 share in March of 1993 and that the cost of that share was $6000.00. She only paid $3000.00 of that cost. After one year, as with other Playa Bonita investors, she would earn the same amount that she had given the defendant which would cover the $3000.00 balance she owed on the purchase. Thus, she would not have been eligible to actually keep any purported earnings until March of 1995 at the earliest. Her grand jury testimony also establishes that when she entered into the contract with the defendant he told her the project would be completed soon. (Id at 68.) When she went to the Dominican Republic in 1996 to visit the project, she found that it still had not been [*13]completed. At that time, the co-defendant in this case told her "that the project had to be stopped because their were no materials, they were very expensive, and they were looking for new investors, yadda, yadda." (Id at 69.) Based on what she saw, Ms. Marte testified that she thought that there were only two villas that had been finished. (Id at 69-70.)As the project was unfinished and also short of funds to finance completing construction, the logical conclusion is that Ms. Marte did not receive any money back. The conclusion is buttressed by testimony in the trial record that the project was never finished.

I, accordingly, find that the People have proven by a preponderance of the evidence that Isidre Marte's out of pocket loss is $3000.00

VIII

FRANCIS VILOMAR

Playa Bonita investor Francis Vilomar did not testify at any prior proceeding in this case or at the restitution hearing and was not specifically named as a victim in the indictment. For reasons previously discussed in this decision, these factors do not disqualify him from receiving restitution.

In the sworn statement submitted by Mr. Vilomar, which was admitted in evidence by the People at the restitution hearing, he states that he gave the defendant $6000.00 as a down payment for an apartment at Playa Bonita and that he never received the apartment or a refund of his money. As proof of his investment, Mr. Vilomar attached the receipt for the payment which reflects that he paid $6000.00 for a 2/12's share in an apartment at Playa Bonita. I find that the sworn statement establishes that Francis Vilomar had an out of pocket loss of $6000.00.

IX

Named Individuals in Bank Records and Persons the AAG claims

are additional victims based on documents contained in her case file.

I do not find that the Bank Records or the documentation

contained in the prosecutor's case file is sufficient to support a restitution award to any additional alleged victims, inasmuch as they never testified at any proceeding in the matter or provided any sworn statements regarding investments in Playa Bonita.

PART TWO

DEFENDANT'S ABILITY TO MAKE RESTITUTION

In accordance with the findings I have made, the sum of the out of pocket losses of the twenty two victims described in PART ONE totals $248,856.48. (A summary chart is annexed to this decision as Exhibit A.) Pursuant to Penal Law section 60.27 (8), defendant would have to pay a 5% surcharge on that amount to the designated official or organization to whom payment is to be remitted. (See, CPL§ 420.10 [1]. The 5% surcharge amounts to $12,442.82.

Defendant claims that he cannot pay any restitution. The testimony that [*14]he gave on the issue was not persuasive. As an initial matter, I found that defendant's testimony was fraught with internal inconsistencies and in many and important respects was not credible. He appeared to make things up as he went along and tailored his testimony to create the impression that he was mired in debt and without any means. For instance, he admitted on cross-examination that he owns a gold watch and a gold ring but did not list them in the jewelry section of the financial disclosure form because he thought they are of little value. In fact, he opined that the ring was only worth five dollars. His entire demeanor indicated to me that he was not being truthful and that the jewelry was probably worth quite a lot of money.

He also gave conflicting testimony about the amount of land he owns in the Dominican Republic. At one point he said it was ten parcels in Playa Bonita valued at $3000.00 per parcel. At another point, it was five lots which could be worth between five thousand and seven thousand dollars. He changed his testimony several times as to who helped him pay his trial and appellate attorneys' fees and whether the money was given as a loan or a gift. I simply do not credit any of the testimony that he has to pay back any such person.

He admitted that he was incarcerated on this case from August of 2000 and September of 2006 and that during this time he continued to receive his monthly pension check of $1250.00 which was automatically deposited into his Chase Bank Account. He explained that for the first twenty months of his incarceration, the pension checks were withdrawn and used to make the installment payments to his appellate attorney. He testified, unconvincingly, that he did not authorize or even know about the monthly withdrawals of his pension check deposits after that time, which left him with a $150.00 balance in his Chase bank account in June of 2006. His claim of a belief that his friend Juan Balderas had stolen the money did not ring true. He admitted that he never mentioned the theft during the hearing I held in August and September of 2006 to determine defendant's application for assigned counsel (which was denied). He also admitted that he never reported the alleged theft to the police.

Defendant, a 66 year old man, testified that he has not worked since 1996

when he began collecting monthly disability benefits. The benefits were suspended during the time he was incarcerated in this case.Since approximately October of 2006, he has been receiving a monthly social security benefit check of $1161.00 and continues to receive his monthly $1250.00 pension check.

Defendant has a court order from New Jersey to pay arrears on alimony payments owing to his ex-wife for $200.00 per month until the $12,000.00 in arrears are satisfied. As his ex-wife has remarried defendant will thereafter have no further alimony obligations to her.

Defendant further testified that he has outstanding legal fees to his current attorney in this matter, Mr.Pagan, whose fee is $250.00 per hour.

Defendant testified that after leaving prison he learned there were judgments against him but claimed that he did not what they related to. According to his testimony he has retained Mr. Pagan to have them vacated.

The submission made by the defendant on January 8, 2008 show that defendant does have four judgments that were entered against him in favor of the following concerns: XX Collect Inc. ($8521.34), Discover Bank ($6897.42), Erin Capital [*15]Management ($6573.79) and LR Credit ($1952.12). Notably, Juan Balderas is a co-defendant on the

Erin Capital Management Judgment.

According to the defendant, since being released from prison, he has resided in a private home in the Bronx. His rent is $1000.00 per month and the rent includes his food, laundry and his room.

According to defendant's testimony, his days are mostly spent at home reading and praying. He testified that he sometimes takes walks.

The defendant claims that he cannot work because he has vertigo, has had two knee replacements and because his legs become numb when he sits too long. I note that during the multiple court proceedings held since defendant's release, he has not appeared to have any difficulty sitting at the counsel table for long periods of time, or walking. I have also never received a request for a recess because defendant had vertigo or any other medical complaint.

His tax return for 2006 indicates that his AGI was $15,000.00 consisting of his total pension benefits for the year. His tax liability for that year was $533.00.

There was no proof that he contributes to the support of any other person.

The testimony at the hearing supports the inference that defendant

authorized the systematic depletion of his Chase Bank account for the purpose of avoiding having to use the funds to satisfy the original restitution order.

CONCLUSION

Defendant admittedly has income totaling $2311.00 per month from his pension and social security check. He has $1111.00 remaining after deducting for the $200.00 he pays on the alimony arrears and the $1000.00 that covers his food, lodging and laundry. Inasmuch, as he stays at home most of the time, his other living expenses cannot be said to be extensive. Certainly there has been no showing that they are. Requiring him to pay $400.00 per month until the total amount of restitution owed is paid, would still leave the defendant with $711.00 in discretionary income each month. I, therefore, conclude that $400.00 (Four hundred dollars) per month until the restitution is paid in full, is not unduly burdensome and represents a reasonable and fair payment schedule.

Accordingly, it is HEREBY ORDERED AND ADJUDGED, that the defendant, ODALIS ROSADO, beginning on the 1st day of February, 2008 and on the 1st day of each consecutive month thereafter, pay $400.00 (Four hundred Dollars), until the entire restitution amount of $248,856.48 is paid in full as well as the 5% surcharge amount of $12,442.82 to the SAFE HORIZON AGENCY, the designated organization to whom the defendant's restitution payments are to be remitted.

The New York State Attorney General's Office shall serve a certified copy

of this decision and Order directing that defendant pay restitution of $248,856.48 as well

as the 5% surcharge amount of $12,442.82, in the manner described above, on the [*16]

New York State Department of Correctional Services and the New York State Division of Parole.

The foregoing is the decision and order of the court.

Dated: New York, New York

January 17, 2008

_____________________________

Arlene D. Goldberg, J.

Footnotes

Footnote 1: There were twelve counts under the General Business Law. Nine counts were for violating GBL§ 352-c(6) and one count each for GBL § 352-c(5), 352-e and 352-h.

Footnote 2: The case was randomly assigned to me since the trial justice was no longer assigned to Criminal Term. The hearing commenced on February 9, 2007 (not February 7 as reflected on the cover page of the restitution hearing minutes). Evidence was also presented on February 21 and April 17, 2007 concerning victims losses.

Footnote 3:Clarification of some points raised by the submissions was made on July 24, 2007.

Footnote 4:The portions of the trial transcript, grand jury minutes and restitution hearing minutes that are referenced in this decision are respectively denominated TT, GJ and RH, followed by the page numbers at which the material is found.

Footnote 5:In his notarized letter, Mr. Vilomar states that he had appeared on February 9, 2007 but was never called to the witness stand, which he attributes to the amount of people that were waiting to be interviewed. I was never advised that he was present.

Footnote 6:The bank records were certified by the eleventh and last witness called by the People at the restitution hearing, Ms. Lauren Sanders.

Footnote 7:One of the documents is a notarized letter from Jose Franco in which he indicates that he gave $6000.00 to the defendant and didn't receive an apartment or his money back. On July 24, 2007, in response to my inquiry, the prosecutor stated that the letter was from the same Jose Franco that had testified at the trial.

Footnote 8:The Assistant Attorney General (hereinafter AAG) erroneously lists Melba Recio as only having testified at the restitution hearing. However, the trial record shows that she testified at the trial onJune 9 and June 12, 2000. (See, TT 927 - 1064.)

Footnote 9: Edwin Gutierrez testified at the restitution hearing on February 9, 2007 (RH 46 - 55) and at the trial of the matter on June 8 and June 9, 2000(TT 695 to 926.)

Footnote 10:The practice of showing investors checks representing purported earned profits or interest on their investments was part of the scheme to defraud.

Footnote 11:Carmen Medrano testified at the restitution hearing on February 9, 2007 (RH 26 - 38) and at defendant's trial on June 22 and June 26, 2000 (TT 2213 to 2296).

Footnote 12:The AAG's submissions regarding the amount of money returned to Ms. Medrano are not consistent; the summary chart submitted on February 21 indicates $180.00 whereas the chart submitted on April 17, indicates that $360.00 was returned. The AAG references page 2263 of the trial transcript for the latter figure. However, at the trial Ms. Medrano never specifically stated that amount.

Footnote 13:Melba Recio testified at the restitution hearing on February 9 (RH 86 -105) and, as previously noted, at defendant'strial on June 9 and June 12, 2000 (TT 927 - 1064).

Footnote 14:In her submission, the AAG erroneously lists the amount as totaling $309.02 instead of the correct amount of $1309.02.

Footnote 15:In response to my inquiry, the People explained on July 24, 2007, that Ms. Adames had been mistakenly omitted from their list of Playa Bonita victims that had testified at the trial. Defense counsel opposed the court considering restitution to a person the prosecutor had omitted from her list. As the trial record was in evidence, the court would have been remiss in not making a determination as to Ms. Adames' out of pocket loss.

Footnote 16:His testimony reflects that his investment consisted of money payments totaling $14,000 and a van that was valued at $18,000.

Footnote 17:In her submission, the Assistant Attorney General lists the witness' name as Franco, Francesco Jose. I have referred to the witness by the name he gave at trial. (TT 1240.)

Footnote 18:The AAG's submission indicates Socorro as the surname. I have referred to the witness by the name as she stated it at the trial (TT 1183).

Footnote 19:Ms. Rivera testified on February 9, 2007.

Footnote 20: Mr. Baez testified on February 9, 2007. The other three all testified on February 21, 2007.

Footnote 21:The trial transcript reflects that the prosecutor told the trial judge that she was prepared to call 40 people for the scheme counts and he advised her to pare down the number of witnesses. (TT 718- 719.)

Footnote 22:Ada Levine testified on February 9, 2007. Aminta Nunez on February 21, 2007. I allowed the testimony, noting that it would be disregarded if, after research on the issue and consideration of the parties' written submissions, it was determined to be inadmissible.