People v. Decker

218 A.D.3d 1026

195 N.Y.S.3d 160

The PEOPLE of the State of New York, Respondent,

v.David J. DECKER, Appellant.

112140

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

Calendar Date: June 6, 2023

Decided and Entered: July 27, 2023

Lippes Mathias LLP, Albany (Karl J. Sleight of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Benjamin R. Smith of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Ceresia, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeals (1) from a judgment of the County Court of Warren County (John S. Hall Jr., J.), rendered September 9, 2020, upon a verdict convicting defendant of the crimes of grand larceny in the second degree, scheme to defraud in the first degree and offering a false instrument for filing in the first degree (four counts), and (2) from an order of said court, entered November 19, 2020, which set the amount of restitution owed by defendant.

In 2001, the Lake George Watershed Coalition (hereinafter LGWC) was created to administer grants provided from the Department of State (hereinafter DOS) to certain municipalities located near Lake George to meet the overall mission of preserving the lake. LGWC was comprised of several municipalities as well as other nonprofit entities in the region and, shortly after its formation, defendant was named its executive director. The grants were administered in accordance with a two-tiered contract structure, wherein LGWC would contract with the various municipal entities comprising the LGWC to complete certain projects in furtherance of its purpose, and the municipal entities, would submit, pursuant to individual contracts, for reimbursement from DOS. The invoices and records that were submitted to DOS were prepared by defendant in his capacity as the director of LGWC. In this respect, defendant was responsible for the completion of the projects and would seek reimbursement on behalf of LGWC for payments made to various subcontractors that he contracted with to perform the work on certain projects. Defendant also submitted invoices for reimbursement of the salary that he received personally for his professional services to LGWC. In order to facilitate this process, defendant set up a bank account for LGWC at Ballston Spa National Bank (hereinafter BSNB), where he also had two personal accounts and an account for his for-profit business, Empire Allstars, through which he ran youth basketball competitions. Defendant filed a "doing business as" (hereinafter d/b/a) certificate for LGWC in 2003. Defendant also established a d/b/a for Empire Allstars in 2006 and for a business called Empire State Equipment and Supply Company (hereinafter Empire State Equipment) in 2000.

DOS commenced an audit in 2014 pertaining to its 11 contracts with various municipalities receiving grant funding, 10 of which involved defendant and LGWC. The audit raised concerns about defendant's financial practices, which prompted investigators to issue two subpoenas to BSNB, one in September 2016 and another in November 2017. In response to the subpoenas, BSNB disclosed defendant's bank records to the Warren County District Attorney's office in October 2016 and December 2017, respectively. Prior to the issuance of the second subpoena, certain bank and tax records were seized from defendant pursuant to a February 2017 search warrant. Defendant later moved to suppress the evidence garnered from the search and County Court scheduled a Mapp hearing. However, the People represented that they did not intend to proceed with the hearing as their case did not rely on any material seized from the search warrants and, therefore, the court granted the motion.

In 2017, the matter was referred to the Office of the State Comptroller (hereinafter OSC) to analyze defendant's bank accounts and the contracts between LGWC and defendant and assess whether there was evidence of fraud or misuse of monies. OSC concluded that defendant had billed the municipalities for the same subcontractor work on multiple occasions and that he had failed to pay certain subcontractors and entities despite receiving reimbursement from the municipalities for their work or services. Further, OSC's analysis of the contracts and defendant's bank accounts led to a determination that defendant had improperly requested reimbursement from the Lake Champlain–Lake George Regional Planning Board (hereinafter the LCLG Planning Board) by submitting fraudulent invoices and invoicing for services that had already been paid through other reimbursement requests. Meanwhile, the Warren County District Attorney's office referred the matter to the Department of Taxation and Finance (hereinafter DTF) to investigate defendant's tax returns, which ultimately revealed that defendant had failed to submit schedule C forms reporting certain income that he earned from, among other things, his work with LGWC, as well as his income from Empire Allstars.

Based on the foregoing, defendant was charged by a 22–count indictment with a series of theft-related crimes. Prior to trial, the People voluntarily dismissed 14 of the 22 counts; the 8 remaining counts, in their renumbered order, charged: corrupting the government in the first degree (count 1), grand larceny in the second degree (count 2), scheme to defraud in the first degree (count 3), grand larceny in the third degree (count 4) and offering a false instrument for filing in the first degree (counts 5, 6, 7 and 8). At the conclusion of a month-long jury trial, defendant was acquitted of counts 1 and 4, but convicted of counts 2, 3, 5, 6, 7 and 8. He was sentenced to a prison term of 3 to 9 years on count 2, and prison terms of 1 to 3 years on counts 3, 5, 6, 7 and 8, with each sentence to run consecutively, resulting in an aggregate prison term of 8 to 24 years. Following a separate restitution hearing, County Court ordered defendant to pay restitution in the following sums: $77,289 to the state, $129,716 plus interest to the U.S. Department of Agriculture (hereinafter USDA), $4,182 plus interest to the Fort William Henry Hotel and Conference Center (hereinafter FWH), $50,000 plus interest to Warren County and $53,610 plus interest to the FUND for Lake George (hereinafter the FUND). Defendant appeals from the judgment of conviction and from the order of restitution.

Defendant contends that each of his convictions is not supported by legally sufficient evidence and the verdict is against the weight of the evidence. However, although defendant moved for a trial order of dismissal at the close of the People's case, his failure to renew that motion at the end of his own case renders his legal sufficiency challenge unpreserved (see People v. Abreu, 195 A.D.3d 1152, 1153, 150 N.Y.S.3d 146 [3d Dept. 2021], lv denied 37 N.Y.3d 1144, 159 N.Y.S.3d 322, 180 N.E.3d 486 [2021] ), notwithstanding his subsequent motion to set aside the verdict pursuant to CPL 330.30(1) (see People v. Morris, 140 A.D.3d 1472, 1472–1473, 34 N.Y.S.3d 513 [3d Dept. 2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ). "Nevertheless, a weight of the evidence challenge, which bears no preservation requirement, also requires consideration of the adequacy of the evidence as to each element of the crimes" ( People v. Truitt, 213 A.D.3d 1145, 1146, 184 N.Y.S.3d 441 [3d Dept. 2023] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 1144, 188 N.Y.S.3d 455, 209 N.E.3d 1281 [2023] ). In determining whether a verdict is against the weight of the evidence, we first look to whether, "based on all the credible evidence a different finding would not have been unreasonable" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; accord People v. Hardy, 57 A.D.3d 1100, 1102, 868 N.Y.S.2d 829 [3d Dept. 2008], lv denied 12 N.Y.3d 784, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009] ). In assessing a defendant's contentions "where, as here, a different verdict would not have been unreasonable, this Court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Valentin, 95 A.D.3d 1373, 1373, 943 N.Y.S.2d 309 [3d Dept. 2012] [internal quotation marks and citations omitted], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ; see People v. Sostre, 172 A.D.3d 1623, 1625, 100 N.Y.S.3d 768 [3d Dept. 2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ). In doing so, "we view the evidence in a neutral light and ... [give] deference to the jury's credibility determinations" ( People v. Lozano, 203 A.D.3d 1231, 1232, 163 N.Y.S.3d 325 [3d Dept. 2022] [internal quotation marks and citations omitted]; see People v. Truitt, 213 A.D.3d at 1147, 184 N.Y.S.3d 441 ).

Turning first to his conviction of grand larceny in the second degree, defendant primarily argues that the People failed to show that he illegally deprived the U.S. Forest Service (hereinafter USFS), the LCLG Planning Board or anyone else of the $135,000 in grant funds received through the USDA, or that he appropriated that money by false or fraudulent pretenses. At trial, the People presented the testimony of Walter Young, the director of the LCLG Planning Board during the relevant time frame. According to Young, defendant raised the idea of the LCLG Planning Board applying for the USFS grant in 2007, and defendant filled out the application so that the LCLG Planning Board would receive the grant funding since LGWC was not an eligible entity. Young testified that in 2010 and 2012, defendant submitted invoices and received the requested reimbursements for payments from DOS to the Town of Queensbury, Warren County for expenses paid to subcontractors Chazen Companies and Earth Specialty Products (hereinafter ESP). To this end, Lucas Wilson, the former owner of ESP, testified that he had worked on a project near Lake...