PEOPLE v. MURRAY (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of insurance fraud in the third degree (Penal Law § 176.20) and falsifying business records in the first degree (§ 175.10). The conviction arises from the filing of an insurance claim for various items of property that were ostensibly destroyed in a residential fire, which was determined upon investigation to have been intentionally set.

Contrary to defendant's contention, Supreme Court did not commit reversible error in its Molineux ruling. Here, the evidence of defendant's prior misrepresentation on the relevant application for insurance was properly admitted in evidence to establish his intent to defraud (see People v. Berger, 155 A.D.2d 951, 951, 547 N.Y.S.2d 767 [4th Dept. 1989], lv denied 75 N.Y.2d 917, 555 N.Y.S.2d 35, 554 N.E.2d 72 [1990]). We conclude that the probative value of that evidence outweighed its potential for prejudice, and “the court's limiting instruction[s] minimized any prejudice to defendant” (People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194 [2014], lv denied 25 N.Y.3d 1173, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015]; see Berger, 155 A.D.2d at 951, 547 N.Y.S.2d 767).

Defendant's additional contention that the court erred in admitting evidence of his significant debts and limited financial means is largely unpreserved for our review and, in any event, lacks merit. That evidence was relevant to whether the contents of the subject claim forms were false inasmuch as it tended to prove that defendant did not actually own and possess in his residence the numerous expensive items of property that he claimed were destroyed in the fire, and its probative value was not substantially outweighed by the potential for prejudice (see generally People v. Harris, 26 N.Y.3d 1, 5, 18 N.Y.S.3d 583, 40 N.E.3d 560 [2015]). Moreover, any error in admitting that evidence is harmless inasmuch as the proof of defendant's guilt, without reference to the error, is overwhelming, and there is no significant probability that the jury would have acquitted defendant had it not been for the error (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

Defendant further contends that the court erred in granting the People's request to instruct the jury on accessorial liability because doing so impermissibly introduced an alternative theory of liability, i.e., that he acted in concert with his wife, that was not charged in the indictment as amplified by the bill of particulars. We reject that contention. “An indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant's basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice” (People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995]; see People v. Duncan, 46 N.Y.2d 74, 79-80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978], rearg denied 46 N.Y.2d 940, 415 N.Y.S.2d 1027, 388 N.E.2d 372 [1979], cert denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 [1979], rearg dismissed 56 N.Y.2d 646, 450 N.Y.S.2d 1026, 436 N.E.2d 196 [1982]; People v. Gigante, 212 A.D.2d 1049, 1049, 624 N.Y.S.2d 1006 [4th Dept. 1995], lv denied 85 N.Y.2d 909, 627 N.Y.S.2d 332, 650 N.E.2d 1334 [1995]). We therefore conclude that “ ‘the jury was properly instructed concerning both theories based upon the evidence adduced at trial’ ” (People v. Young, 55 A.D.3d 1234, 1235, 864 N.Y.S.2d 584 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008]). Contrary to defendant's contention, “the accessorial liability instruction did not introduce any new theory of culpability into the case that was inconsistent with that in the indictment, and thus his indictment as a principal provided him with fair notice of the charge[s] against him” (id.; see Rivera, 84 N.Y.2d at 770-771, 622 N.Y.S.2d 671, 646 N.E.2d 1098).

Finally, we reject defendant's contention that the conviction is not supported by legally sufficient evidence. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), and affording them the benefit of every favorable inference (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]), we conclude that there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (id.). Contrary to defendant's specific contention, even if he did not personally complete and sign each claim form, the evidence is legally sufficient to establish that he “cause[d] to be presented” a written statement containing materially false information in support of a claim for payment pursuant to an insurance policy (Penal Law § 176.05 [emphasis added]; see § 176.20) and “cause[d] a false entry in the business records of an enterprise” (§ 175.05 [1] [emphasis added]; see § 175.10) by meeting with the insurance company's representative and submitting to him the forms that were to be filed on defendant's behalf (see People v. Barto, 144 A.D.3d 1641, 1643, 41 N.Y.S.3d 838 [4th Dept. 2016], lv denied 28 N.Y.3d 1142, 52 N.Y.S.3d 294, 74 N.E.3d 679 [2017]; People v. Fuschino, 278 A.D.2d 657, 658-659, 719 N.Y.S.2d 152 [3d Dept. 2000], lv denied 96 N.Y.2d 800, 726 N.Y.S.2d 377, 750 N.E.2d 79 [2001]; see generally People v. Abraham, 22 N.Y.3d 140, 147-148, 978 N.Y.S.2d 723, 1 N.E.3d 797 [2013]).