People v. Aamir

203 A.D.3d 839

160 N.Y.S.3d 878 (Mem)

The PEOPLE, etc., respondent,

v.Sulaiman AAMIR, appellant.

2016–11506

Ind. No. 5973/14

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

Argued—January 7, 2022

March 9, 2022

Patricia Pazner, New York, NY (Sean H. Murray of counsel), for appellant.

Letitia James, Attorney General, New York, NY (Michelle Maerov of counsel), for respondent.

BETSY BARROS, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Evelyn J. Laporte, J.), rendered January 11, 2016, convicting him of criminal tax fraud in the first degree, offering a false instrument for filing in the first degree (nine counts), and falsifying business records in the first degree (nine counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his convictions of one count of criminal tax fraud in the first degree, nine counts of offering a false instrument for filing in the first degree, and nine counts of falsifying business records in the first degree based upon his failure to report tobacco product purchases on nine monthly tax forms and his consequent failure to pay more than $1,000,000 in tobacco excise tax is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, 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 prove the defendant's guilt beyond a reasonable doubt. 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 factfinder'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 argues that the Supreme Court erred in admitting a handwritten business ledger and 296 purchase invoices into evidence. The defendant's contention that the People failed to authenticate these exhibits is without merit (see People v. Jackson, 125 A.D.3d 1002, 1003, 2 N.Y.S.3d 625 ). The defendant's further contention that the exhibits contained inadmissible hearsay is unpreserved for appellate review (see CPL 470.05[2] ; People v. Foy, 187 A.D.3d 782, 783, 131 N.Y.S.3d 390 ). In any event, the ledger was admissible under the exception to the hearsay rule for party admissions (see People v. Moore, 89 A.D.3d 769, 770, 931 N.Y.S.2d 886 ), and the invoices were admissible as adoptive admissions (see People v. Oliver, 193 A.D.3d 1081, 1082, 146 N.Y.S.3d 666 ).

The testimony of the People's expert did not deprive the defendant of a fair trial. The Supreme Court properly allowed the expert to testify as to his calculation of the defendant's unreported tobacco purchases and unpaid tobacco taxes. Where the subject matter is beyond the ken of the average factfinder, "it matters not whether the [expert] testimony relate[s] to the ultimate issue in the case" ( People v. Hicks, 2 N.Y.3d 750, 751, 778 N.Y.S.2d 745, 811 N.E.2d 7 ; see People v. Lurie, 249 A.D.2d 119, 121–123, 673 N.Y.S.2d 60 ). The defendant's further contention that the expert's testimony was otherwise improper is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit (see People v. Sharpe, 185 A.D.3d 965, 966, 125 N.Y.S.3d 869 ; People v. Sosa–Marquez, 177 A.D.3d 1003, 1004, 115 N.Y.S.3d 333 ).

The defendant also failed to preserve for appellate review his contention that the Supreme Court's charge constituted an improper constructive amendme...