PEOPLE v. WHITE (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (James C. Hudson, J.), rendered January 29, 2015, convicting him of grand larceny in the second degree (seven counts) and scheme to defraud in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

For his execution of a scheme to defraud investors through which the defendant fraudulently secured over $50,000 from each investor, the defendant was convicted of seven counts of grand larceny in the second degree, as well as one count of scheme to defraud in the first degree (Penal Law §§ 155.40, 190.65).  While the defendant contends that he is actually innocent of these charges, the defendant's claim of actual innocence is not properly raised on this direct appeal, as the appropriate forum for a claim of actual innocence is a CPL 440.10 proceeding.  Such claims pertain to “ ‘factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial’ ” (People v. Green, 201 A.D.3d 814, 815, 160 N.Y.S.3d 108, quoting People v. Hamilton, 115 A.D.3d 12, 23, 979 N.Y.S.2d 97).  To the extent that this issue was raised by the defendant in a postconviction motion to vacate the judgment of conviction pursuant to CPL 440.10, it is not properly before us because the defendant was denied leave to appeal from the order denying that motion (see People v. Robinson, 187 A.D.3d 1216, 1218, 131 N.Y.S.3d 637).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  Contrary to the defendant's contention, the direct and circumstantial evidence adduced at trial demonstrated that he did not have permission or authority to use the subject funds in the manner he chose, and supported an inference of larcenous intent (see People v. Mitchell, 188 A.D.3d 1103, 1104, 136 N.Y.S.3d 98).  Additionally, the defendant's intent to never repay his investors “can be inferred from, among other things, his pattern of targeting older clients, his record of failing to repay large sums of money in full or not at all, his repeated failure to follow through on specific requests from his clients that he return their initial investment, his repeated excuses for such failure, and his attempts to evade their efforts to contact him” (People v. DeDeo, 59 A.D.3d 846, 850–851, 874 N.Y.S.2d 291).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that the People changed their theory of prosecution during trial is unpreserved for appellate review (see CPL 470.05[2];  People v. McDonnell, 201 A.D.3d 951, 162 N.Y.S.3d 408;  People v. Gibson, 106 A.D.3d 834, 964 N.Y.S.2d 611) and, in any event, without merit (cf.  People v. Martinez, 83 N.Y.2d 26, 32, 607 N.Y.S.2d 610, 628 N.E.2d 1320;  People v. Aamir, 203 A.D.3d 839, 160 N.Y.S.3d 878).

The defendant's contention that the prosecution prevented him from presenting certain witnesses at trial is premised on proceedings, affidavits, and conversations that are dehors the record, and cannot be reviewed on direct appeal (see People v. Devitt, 214 A.D.3d 825, 826, 183 N.Y.S.3d 758).

The defendant was afforded the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).  The defendant failed to demonstrate the existence of a potential conflict of interest regarding his trial attorney that actually affected or operated on the conduct of his defense (see People v. Beckerman, 215 A.D.3d 881, 882, 186 N.Y.S.3d 386).  The defendant's contention, in effect, that his right to a speedy trial pursuant to CPL 30.30 was violated because the People were not ready for trial until they filed an amended bill of particulars to include an alternate theory on the charges of grand larceny in the second degree is without merit (see People v. Morales, 109 A.D.3d 759, 971 N.Y.S.2d 752;  see generally People v. Sinistaj, 67 N.Y.2d 236, 239–240, 501 N.Y.S.2d 793, 492 N.E.2d 1209), and therefore, counsel cannot be deemed ineffective for failing to advance this contention before the trial court (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).

The defendant's contentions regarding the propriety of the restitution order are unpreserved for appellate review, since the defendant failed to object to the payment of restitution, failed to object to the amount of restitution, and failed to request a restitution hearing (see People v. Horne, 97 N.Y.2d 404, 414 n 3, 740 N.Y.S.2d 675, 767 N.E.2d 132;  People v. Whitman, 189 A.D.3d 1620, 1621, 135 N.Y.S.3d 273;  People v. Isaacs, 71 A.D.3d 1161, 898 N.Y.S.2d 226).

The defendant's remaining contentions are either without merit or academic in light of our determination.

CONNOLLY, J.P., GENOVESI, DOWLING and LOVE, JJ., concur.