People v. Abraham
| Decision Date | 26 November 2013 |
| Citation | 2013 N.Y. Slip Op. 07825,1 N.E.3d 797,978 N.Y.S.2d 723,22 N.Y.3d 140 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Akiva Daniel ABRAHAM, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Jonathan S. Fishbein, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
The primary issue in this case is whether factual inconsistency in a jury verdict acquitting a defendant of one count but convicting him of another renders the record evidence legally insufficient to support the conviction. We hold that it does not.
On April 16, 2009, defendant Akiva Abraham's limited liability company, 1st Call, LLC, acquired a property in Colonie on which stood an abandoned night club known as Saratoga Winners. The purchase price was only one dollar, apparently because the property was encumbered by a bank lien.
On the same day, Parel Road, LLC, originated a mortgage in the amount of $475,000 to 1st Call for the purchase of the property. Parel Road never transferred any money to 1st Call. And at the time of the transaction, Parel Road had about $25 in its checking account. Whether Parel Road owned other assets was not established at trial.
Also on the day of the purchase, defendant signed a property insurance contract with an insurance agent at Shank & Falvey, securing coverage in the amount of $475,000. The policy became effective on April 20, 2009.
On April 30, 2009, two weeks after the purchase, Saratoga Winners burned to the ground. Once fire crews had extinguished the flames, fire investigators searched for the origin of the blaze. A trained dog identified the presence of accelerants both outside and inside the destroyed building. Investigators took samples at the locations the dog identified and sent them to the New York State Police Forensic Investigation Center. They tested positive for strong concentrations of medium petroleum distillate of the kind that is used to light lamps, such as “Klean Heat” or “Tiki” torch fuel. The presence of the accelerants combined with the lack of any fire hazards in the building caused investigators to rule out all possible causes for the fire except arson.
Defendant reported the loss to his insurance company and caused a property loss notice to be filed. He told the company that he did not know the cause of the fire.
Investigators interviewed defendant on two occasions after the fire. The interviews were recorded and played for the jury at trial. During the interviews, defendant gave elaborate explanations of the financial transactions accompanying his purchase of the property and how he intended to profit from flipping it. But it was revealed at trial that the company that held the mortgage, Parel Road, actually was his father's 401(k), which defendant controlled.
Investigators discovered that on April 27, 2009, three days before the fire, defendant had purchased four gallons of Tiki torch fuel (a medium petroleum distillate) and two nine-pack boxes of Duraflame logs at Home Depot. Police arrested defendant on May 15, 2009 and conducted a search of his car and home. Tests on one of the floor mats in defendant's car revealed an “abundance” of a medium petroleum distillate.* A search of a shed behind defendant's home revealed four empty one gallon bottles of Tiki torch fuel and two empty Duraflame boxes. Investigators discovered Tiki torches in the shed as well. Also at defendant's home were a kerosene canister and a gas can. The officers did not seize either container, or check whether they contained Tiki torch fuel.
Defendant was charged with arson in the third degree, insurance fraud in the second degree, and reckless endangerment in the first degree. His first trial ended in a hung jury.
At his second trial, it came out that on at least two occasions, 1st Call had been unable to meet its payroll obligations. After the fire, defendant told a 1st Call employee that the fire “could be big for us.”
The prosecution's theory of the case was that defendant needed money, obtained a fake mortgage to make it appear as though he intended to improve the property, obtained insurance in the amount of that mortgage, burned down the building, and lied about the cause of the fire to the insurance company to collect on the insurance. During opening and closing, the prosecution repeatedly referred to the mortgage as “fake” and “bogus.” At closing, the defense objected, arguing that the prosecution had not proved that the mortgage was fake and thus was making false statements to the jury. The court overruled the objection.
Before the charge was read to the jury, defense counsel asked the court to include a line in the verdict form instructing the jury to stop deliberating if it found defendant not guilty of arson. Defense counsel maintained that the only theory of insurance fraud charged in the indictment was that defendant had burned down his building and bed to the insurance company about the cause of the fire. Counsel argued that the prosecution's remarks about the “fake” mortgage made it possible that the jury could find defendant guilty of insurance fraud for lying about the mortgage, not the cause of the fire. The trial judge refused, saying that he knew of no authority in the Criminal Procedure Law that would permit such cessation of deliberations.
The jury found defendant guilty of insurance fraud in the second degree, but acquitted him of arson in the third degree and reckless endangerment in the first degree.
The Appellate Division affirmed the judgment, holding that there was sufficient evidence to support a finding that defendant concealed the cause of the fire from the insurance company (People v. Abraham, 94 A.D.3d 1332, 1333, 942 N.Y.S.2d 708 [3d Dept.2012] ). It held also that the prosecution's references to the “fake” mortgage were not made in an attempt to introduce a new theory of liability, but were part of the prosecution's narrative, and were a fair comment on the evidence (id. at 1333–1334, 942 N.Y.S.2d 708). A Judge of this Court granted defendant leave to appeal (19 N.Y.3d 1100, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ).
Defendant argues that his conviction should be vacated because: (1) the record evidence is insufficient to establish his guilt of insurance fraud in the second degree; (2) the trial court erred by not instructing the jury to stop deliberating after it acquitted defendant of arson; and (3) the prosecution committed misconduct in summation and its arguments on appeal. None of these arguments is persuasive.
A person is guilty of insurance fraud in the second degree when he “commits a fraudulent insurance act and thereby wrongfully takes, obtains or withholds, or attempts to wrongfully take, obtain or withhold property with a value in excess of fifty thousand dollars” (Penal Law § 176.25). As relevant here, “[a] fraudulent insurance act is committed by any person who, knowingly and with intent to defraud presents [or] causes to be presented ... any written statement as part of, or in support of ... a claim for payment or other benefit” containing “materially false information” or concealing “information concerning” a material fact (Penal Law § 176.05[1] [a], [b] ).
The prosecution's theory of the case, as charged in the indictment, was that defendant obtained insurance on the property, burned down Saratoga Winners, lied to the insurance company about the cause of the fire, caused to be filed a property loss notice containing misstatements or concealing information about the cause of the fire, and thus wrongfully attempted to take funds in excess of $50,000.
Defendant argues that because the jury acquitted him of arson, the prosecution did not establish that he knew the cause of the fire or lied to the insurance company, and therefore the evidence is insufficient to support his conviction for insurance fraud. In other words, he claims that, in light of the prosecution's theory of the case, (1) the jury verdict is factually inconsistent, and therefore, (2) the evidence is legally insufficient to support his conviction.
A verdict is factually inconsistent where, in light of the evidence presented, an acquittal on one count is factually irreconcilable with a conviction on another count (People v. Muhammad, 17 N.Y.3d 532, 545, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ). Factual inconsistency—“which can be attributed to mistake, confusion, compromise or mercy—does not provide a reviewing court with the power to overturn a verdict” ( id.; see People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132 [1981]; and see People v. Horne, 97 N.Y.2d 404, 413, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] [] ). If a jury renders a factually inconsistent verdict, the trial court ...
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