People v. Arbas

• Decision Date: 09 June 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Matthew M. ARBAS, Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1320

924 N.Y.S.2d 671

2011 N.Y. Slip Op. 04779

The PEOPLE of the State of New York, Respondent,

v.Matthew M. ARBAS, Appellant.

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

June 9, 2011.

Mitch Kessler, Cohoes, for appellant.John M. Muehl, District Attorney, Cooperstown, for respondent.Before: MERCURE, J.P., PETERS, LAHTINEN, MALONE JR. and STEIN, JJ.MALONE JR., J.

Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered April 5, 2010, upon a verdict convicting defendant of the crime of forgery in the second degree (three counts).

Defendant and his father were the joint owners and operators of a farm business in Otsego County. According to defendant, in 2002 or 2003, the two men had a dispute about managing the farm, after which defendant's father left the business and he last saw his father sometime in 2004. In May 2005, defendant was questioned by the State Police regarding certain banking transactions that defendant allegedly made in his father's name. While defendant admitted that he had closed out some of his father's personal accounts and had signed his father's name on various commercial instruments, he claimed to have done so with his father's permission. He further admitted that he had disguised himself as his father and transferred funds between two of his father's personal accounts.

In August 2009, defendant was charged by indictment with grand larceny in the second degree, scheme to defraud in the first degree and six counts of forgery in the second degree. Defendant moved to, among other things, dismiss the indictment, alleging that the grand jury proceedings were defective. County Court denied the motions, but subsequently dismissed one count of forgery in the second degree prior to trial. At trial, defendant admitted to signing his father's name on various documents, but maintained that, in the course of business, he and his father had regularly signed each other's signatures. The jury ultimately convicted defendant of three counts of forgery in the second degree and acquitted him of the other charges. Defendant unsuccessfully moved to set aside the verdict and was thereafter sentenced to an aggregate prison term of 6 to 18 years. Defendant appeals.

Initially, we are not persuaded that the integrity of the grand jury proceeding was sufficiently impaired to warrant dismissal of the indictment. Such drastic relief is available when “ ‘prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury’ ” ( People v. Serkiz, 17 A.D.3d 28, 30, 790 N.Y.S.2d 296 [2005], quoting People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). Here, while some inadmissible hearsay evidence was elicited by the prosecutor from three witnesses, the proceeding otherwise substantially conformed with the requirements of CPL article 190. In addition, legally sufficient independent proof existed to support the indictment and, thus, defendant was not prejudiced by the hearsay testimony ( see People v. Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362; People v. Miles, 76 A.D.3d 645, 645, 905 N.Y.S.2d 775 [2010] ). Nor are we persuaded that the integrity of the proceeding was substantially impaired by the testimony elicited by the prosecutor regarding the disappearance of defendant's father. The prosecutor adequately instructed the grand jurors that such testimony was permitted only to provide background as to why defendant had been investigated by the police and repeatedly warned them that, during their deliberations, they were not permitted to consider the fact that the father was missing.

Next, we do not agree with defendant that County Court erred by denying his motion to disqualify the District Attorney's office for a conflict of interest based upon an Assistant District Attorney's representation of him in a prior civil lawsuit he had brought against his father. The removal of a prosecutor is appropriate “to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” ( Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983] ), but the defendant must establish more than a mere appearance of impropriety ( see People v. Gigliuto, 22 A.D.3d 890, 892, 803 N.Y.S.2d 216 [2005], lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 819, 854 N.E.2d 1283 [2006] ). Here, the Assistant District Attorney who had previously represented defendant had minimal involvement in only the early stages of defendant's prosecution and none of the information elicited at trial about the prior lawsuit indicated that any abuse of confidence or use of privileged information had occurred ( see People v. Abrams, 73 A.D.3d 1225, 1227, 900 N.Y.S.2d 489 [2010], lv. denied 15 N.Y.3d 746, 906 N.Y.S.2d 819, 933 N.E.2d 218 [2010] ).

We are not persuaded that the convictions of three counts of forgery in the second degree are inherently inconsistent with the acquittals of grand larceny in the second degree, scheme to defraud in the first degree and two counts of forgery in the second degree. Reviewing the evidence at trial and the elements of...