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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Anthony T. RIZZO, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., LAWTON, WISNER, HURLBUTT and BALIO, JJ. Lawrence J. Vilardo, Buffalo, for Defendant-Appellant. Lawrence N. Gray, New York City, for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of grand larceny in the first degree (Penal Law § 155.42), grand larceny in the third degree (Penal Law § 155.35), attempted grand larceny in the second degree (Penal Law §§ 110.00, 155.40), scheme to defraud in the first degree (Penal Law § 190.65), and 10 counts of offering a false instrument for filing in the first degree (Penal Law § 175.35).   The charges are based on allegations that defendant submitted false bills for prescriptions to the New York State Elderly Pharmaceutical Insurance Coverage Program (EPIC) and the New York State Medical Assistance Program (Medicaid) in a total amount exceeding $1,000,000.

 After a hearing Supreme Court concluded that defendant was competent to stand trial.   Thereafter, shortly before trial, defendant moved for permission to file a late notice of intent to introduce psychiatric evidence to establish a defense of mental disease or defect (see, CPL 250.10).   Although such a notice must be served no later than 30 days after the entry of a plea of not guilty, late notice may be filed in the interest of justice and for good cause shown (see, CPL 250.10[2] ).   In order to establish good cause, a defendant must provide an explanation for the delay and demonstrate that the defense has merit (see, People v. Oakes, 168 A.D.2d 893, 895, 565 N.Y.S.2d 648, lv. denied 78 N.Y.2d 957, 573 N.Y.S.2d 652, 578 N.E.2d 450).   The notice must also provide enough information to enable the prosecution and the court to “discern the general nature of the alleged psychiatric malady and its relationship to a particular, proffered defense” (People v. Almonor, 93 N.Y.2d 571, 581, 693 N.Y.S.2d 861, 715 N.E.2d 1054).   The notice provided by defendant failed to identify any alleged psychiatric malady and also failed to identify its relationship to a particular defense.   Thus, the notice was insufficient, and the court did not abuse its discretion in denying defendant's motion (see, People v. Almonor, supra, at 581, 693 N.Y.S.2d 861, 715 N.E.2d 1054).

 We also conclude that the court properly admitted in evidence the unredacted audiotape of defendant's interview with an insurance investigator.   The tape was admissible as evidence of defendant's intent and mental state at the time of the commission of the offenses (see, People v. Ingram, 71 N.Y.2d 474, 479, 527 N.Y.S.2d 363, 522 N.E.2d 439;  see also, People v. Alvino, 71 N.Y.2d 233, 241-243, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Bolarinwa, 258 A.D.2d 827, 687 N.Y.S.2d 442, lv. denied 93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934), and the questions of the investigator “were so inextricably interwoven with the admissible evidence that [they were] necessary to understand the other parts of the [tape]” (People v. Adams, 224 A.D.2d 703, 704, 639 N.Y.S.2d 428, lv. denied 88 N.Y.2d 844, 644 N.Y.S.2d 690, 667 N.E.2d 340;  see, People v. Williams, 242 A.D.2d 867, 868, 662 N.Y.S.2d 672, lv. denied 91 N.Y.2d 899, 669 N.Y.S.2d 13, 691 N.E.2d 1039).   In any event, any prejudice resulting from those questions was cured by the court's detailed instruction to the jury to disregard them.

 By referring to the failure of defendant to request a fair hearing when he was terminated as an EPIC provider, the prosecutor improperly referred to defendant's pretrial silence in an ambiguous situation where an innocent explanation for silence may exist (see, People v. DeGeorge, 73 N.Y.2d 614, 618-619, 543 N.Y.S.2d 11, 541 N.E.2d 11;  cf., People v. Savage, 50 N.Y.2d 673, 679, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475).   The prosecutor also improperly referred to a defense tactic as “sneaky”.   Those errors, however, are not so egregious as to require reversal (see, People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114;  see also, People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885).   We have reviewed defendant's remaining contentions concerning alleged prosecutorial misconduct and conclude that they are without merit.

 The court provided the jury with a meaningful response to its request for a second reading of the charge on mental disease or defect (see, People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212).   The court also properly refused to charge the jury on requested lesser included offenses because there was no “identifiable basis on which [the] jury might reasonably differentiate between segments of the proof and ‘charging the lesser included offense[s] would force the jury to resort to sheer speculation’ ” (People v. Scarborough, 49 N.Y.2d 364, 371, 426 N.Y.S.2d 224, 402 N.E.2d 1127, quoting People v. Discala, 45 N.Y.2d 38, 43, 407 N.Y.S.2d 660, 379 N.E.2d 187).

 The court should have given a circumstantial evidence charge.   There was no evidence directly linking defendant to the submission of the fraudulent bills.   The statements of defendant were not direct admissions of guilt but statements from which guilt could be inferred.  “ ‘[A]n extrajudicial admission by a defendant, not amounting to a confession because not directly acknowledging guilt, but including inculpatory acts from which a jury may or may not infer guilt, is circumstantial, not direct evidence’ ” (People v. Burke, 62 N.Y.2d 860, 861, 477 N.Y.S.2d 618, 466 N.E.2d 158, quoting People v. Bretagna, 298 N.Y. 323, 326, 83 N.E.2d 537, cert. denied 336 U.S. 919, 69 S.Ct. 642, 93 L.Ed. 1082, reh. denied 336 U.S. 922, 69 S.Ct. 642, 93 L.Ed. 1084).   A statement that a person is responsible for the billing is not the same as a statement that the person submitted a particular bill to a particular agency.   That error, however, is harmless.   The evidence of guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see, People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345;  see also, People v. Weaver, 234 A.D.2d 904, 651 N.Y.S.2d 789, lv. denied 89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997).

Defendant's contention that the conviction is based on legally insufficient evidence is not preserved for our review (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and in any event lacks merit (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The verdict is not against the weight of the evidence (see, People v. Bleakley, supra, at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Judgment unanimously affirmed.


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