People v Bizardi

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[*1] People v Bizardi 2018 NY Slip Op 28409 Decided on December 19, 2018 City Court Of Auburn McKeon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 19, 2018
City Court of Auburn

People of the State of New York,


Richard Bizardi, Defendant.


For the Plaintiff:

Hon. Jon E. Budelmann

Cayuga County District Attorney

By: Jesse M. Eshkol, Esq.

Assistant District Attorney

95 Genesee Street

Auburn, New York 13021

For the Defendant:

Ryan James Muldoon, Esq.


11 Court Street

Auburn, New York 13021
Michael F. McKeon, J.




Defendant was charged with petit larceny, welfare fraud in the fifth degree and misuse of food stamps related to his receipt of SNAP (Supplemental Nutrition Assistance Program) benefits. A jury trial commenced on November 27, 2018, and concluded to verdict on November 28, 2018. Defendant was found guilty of all charges. Following the close of the People's case, defendant moved for a trial order of dismissal, arguing that the People had not sustained its burden of proof on any of the three charges. The Court reserved decision, after which the defense [*2]rested without presenting any witnesses. Following the verdict, the Court denied defendant's motion to dismiss as to the petit larceny and misuse of food stamps charges. However, the Court indicated that it did not appear that the facts supported the welfare fraud charge and that said charge would be dismissed. Following oral argument, the Court allowed the parties the opportunity to provide written briefs and adjourned the matter for additional oral argument on the motion, and for sentencing.

Defendant was arrested following an investigation by the Cayuga County Department of Social Services (DSS) related to his application for and receipt of SNAP benefits. Defendant's benefits began on or about July 14, 2016, and continued until January 31, 2017. The evidence at trial showed that at the time defendant made the application, he was unemployed and eligible for benefits. On or about August 8, 2016, defendant began employment with Universal Forest Products, where he remained employed until on or about June 14, 2017.

Although required to report any changes in his employment status to DSS, defendant failed to do so. As a result, he received SNAP benefits that he would otherwise have been ineligible for. This resulted in an overpayment of benefits from October 1, 2016, through January 31, 2017, in the amount of $776.00. According to witness testimony, of the $776.00 deposited into defendant's benefit card, only the first month's and a portion of the second month's benefits were withdrawn and used by defendant. Nevertheless, during this time, defendant failed to notify DSS of the change in his employment status. The evidence at trial demonstrated that defendant only provided documents regarding his eligibility for benefits on or about July 15, 2016, the date he signed the application and other DSS documents.

A person is guilty of welfare fraud in the fifth degree, when he or she commits a fraudulent welfare act and takes or obtains public assistance benefits (Penal Law §158.05). A fraudulent welfare act is defined by statute as:

knowingly and with intent to defraud, engaging in an act or acts pursuant to which a person: (1) offers, presents or causes to be presented to the state, any of its political subdivisions or social services districts, or any employee or agent thereof, an oral or written application or request for public assistance benefits or for a public benefit card with knowledge that the application or request contains a false statement or false information, and such statement or information is material, or (2) holds himself or herself out to be another person, whether real or fictitious, for the purpose of obtaining public assistance benefits, or (3) makes a false statement or provides false information for the purpose of (i) establishing or maintaining eligibility for public assistance benefits or (ii) increasing or preventing reduction of public assistance benefits, and such statement or information is material (Penal Law §158.00(b)).

The People argue that defendant's failure to notify DSS of his change in employment status amounted to a fraudulent welfare act within the meaning of the statute. They argue that the statute contemplates omissions as defined by Penal Law §§ 15.00 and 15.10, and that defendant's failure to report any change in his income was such an omission. In support of its position, the People rely on the Third Department case of People v. Niver, 45 AD3d 1051 (3d Dept 2007), lv denied 10 NY3d 769 (2008). In Niver, defendant was convicted of several crimes, including welfare fraud in the fourth degree, for failing to report the simultaneous receipt of additional [*3]workers' compensation income and filing false applications for public assistance (see Niver, 45 AD3d at 1052). Initially, as the People acknowledge, while the Court in Niver discussed the duty to report changes in income, it did so in the context of the charges for filing a false instrument in that case. Nevertheless, the People's reliance on Niver is misplaced. In that case, at the time the application for benefits was filed, defendant's wife, who was a co-defendant, had an active worker's compensation claim and actually received income from it both before and after the application for benefits was made (see id at 1053). Thus, the Court held that defendant's failure to include the reasonably anticipated future worker's compensation benefits "on the welfare application establishes the requisite intent to defraud" (id).

Here, there is nothing in the record to demonstrate that defendant submitted an application or request for benefits that contained a false statement or false information within the meaning of Penal Law §158.00(b). At the time he applied for benefits, he was unemployed. There was no evidence presented at trial to demonstrate that defendant was aware he would be gaining employment with Universal Forest Products at the time he signed the application on July 15, 2016. Likewise, there was no evidence that defendant provided any false documentation to DSS thereafter.

The People are correct that an omission, defined by statute as the failure to perform an act as to which a duty of performance is imposed by law, can be a fraudulent welfare act (Penal Law §15.00). Such was the case in Niver and other cases where the defendant omitted pertinent information from a benefits or recertification application (see Niver, 45 AD3d at 1051; see also People v. Kluss, 143 AD3d 1281 (4th Dept 2016), lv denied 28 NY3d 1147 (2017); People v. Swain, 309 AD2d 1173 (4th Dept 2003), lv denied 1 NY3d 581 (2003)). The People are also correct that defendant had a duty to report his change in income and employment status to DSS. However, the duty to report such a change would only amount to guilt under the welfare fraud statute in this instance if defendant knowingly and with intent to defraud made a materially false statement in order to obtain SNAP benefits, to maintain his eligibility for benefits, or to increase or prevent a reduction of his benefits.

Unlike in Niver, there is no proof in the record that at the time he made his application, defendant had any income or was aware of any future employment income. There was no testimony or other evidence that defendant had been hired at the time he made his application for benefits or that he had any knowledge at that time that he would be receiving the income in the future.

The welfare fraud statutes set forth in the penal law, unlike other statutes including Social Services Law §§145 and 147, do not contemplate the mere failure to report changes in the future. A failure to perform a future act cannot be a predicate for a claim for fraud (see generally People v. Smalls, 162 AD2d 642 (2d Dept 1990), lv denied 76 NY2d 896 (1990)). In such cases, there is no "look back" requirement that, when changes occur in the future, converts the true facts in a previously made application to false statements based on events not known at the time the application was made.

Here, defendant's failure to report his employment income after his initial application for benefits was enough to support the guilty verdicts for petit larceny and misuse of food stamps. Had the evidence shown that defendant had clear knowledge, as opposed to speculation or conjecture, that he would be receiving income in the near future, his failure to so report the [*4]information in his benefits application may have supported a guilty verdict for welfare fraud in the fifth degree. Likewise, had defendant, after he made his initial application for benefits, provided materially false information to DSS regarding his income, a guilty verdict may have been supported here. In contrast, under the facts presented at trial, defendant's failure to report his change in income was not sufficient to support the charge of welfare fraud in the fifth degree.

Accordingly, Defendant's motion for a trial order of dismissal as to the charge of welfare fraud in the fifth degree is hereby granted and the charge dismissed. The Court will proceed with sentencing on the remaining two charges.

This constitutes the Decision and Order of the Court.


Hon. Michael F. McKeon

City Court Judge

December 19, 2018