People v. Barone

• Decision Date: 27 December 2012
• Citation: 101 A.D.3d 585,958 N.Y.S.2d 18,2012 N.Y. Slip Op. 09143
• Parties: The PEOPLE of the State of New York, Respondent, v. Vincent BARONE, Defendant–Appellant. The People of the State of New York, Respondent, v. Reddy Kancharla, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 585

958 N.Y.S.2d 18

2012 N.Y. Slip Op. 09143

The PEOPLE of the State of New York, Respondent,

v.Vincent BARONE, Defendant–Appellant.

The People of the State of New York, Respondent,

v.Reddy Kancharla, Defendant–Appellant.

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

Dec. 27, 2012.

Lankler & Carragher, LLP, New York (Andrew M. Lankler of counsel), for Vincent Barone, appellant.

Stillman, Friedman & Shechtman, P.C., New York (Paul Shechtman of counsel), for V. Reddy Kancharla, appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Amyjane Rettew of counsel), for respondent.

CATTERSON, J.P., RICHTER, ABDUS–SALAAM, MANZANET–DANIELS, ROMÁN, JJ.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 7, 2010, convicting defendant Vincent Barone, after a jury trial, of enterprise corruption, attempted grand larceny in the third degree, two counts of scheme to defraud in the first degree and nine counts of offering a false instrument for filing in the first degree, and sentencing him to an aggregate term of 5 1/3 to 16 years, modified, on the law and the facts, to the extent of vacating the conviction for enterprise corruption and, as a matter of discretion in the interest of justice, to the extent of modifying the remaining sentences to run concurrently, thereby reducing the aggregate term to 16 months to 4 years, and otherwise affirmed. Judgment, same court and Justice, rendered May 26, 2010, convicting defendant V. Reddy Kancharla, after a jury trial, of enterprise corruption, two counts of scheme to defraud in the first degree, nine counts of offering a false instrument for filing in the first degree and three counts of falsifying business records in the first degree, and sentencing him to an aggregate term of 7 to 21 years, modified, on the law and the facts, to the extent of vacating the convictions for enterprise corruption and offering a false instrument for filing under counts 12 and 13 as originally numbered in the indictment, and, as a matter of discretion in the interest of justice, to the extent of modifying the remaining sentences to run concurrently, thereby reducing the aggregate term to 16 months to 4 years, and otherwise affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

We exercise our discretion in the interest of justice to modify defendants' sentences so that the sentences for the remaining counts run concurrently. Pursuant to CPL 470.15(6)(b), this Court has “broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances,” even with respect to an otherwise legal sentence ( see People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 [1992] ). This power may be exercised in the interest of justice and without deference to the sentencing court ( id.) Where the court deems an otherwise legal sentence to be excessive, it may “substitute [its] own discretion even where a trial court has not abused its discretion” ( People v. Edwards, 37 A.D.3d 289, 290, 829 N.Y.S.2d 503 [1st Dept. 2007],lv. denied9 N.Y.3d 843, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007], citing People v. Rosenthal, 305 A.D.2d 327, 329, 760 N.Y.S.2d 460 [1st Dept. 2003] ).

In this case, the trial court sentenced Barone to an aggregate term of 5 1/3 to 16 years, indicating that the sentences on four counts—including offering a false instrument for filing, attempted grand larceny, and scheme to defraud—should run consecutively, but concurrently with the sentences on the remaining counts, including the sentence of 5 1/3 to 16 years for enterprise corruption. Similarly, the trial court sentenced Kancharla to an aggregate term of 7 to 21 years, indicating that the sentences on six counts—including offering a false instrument for filing, falsifying a business record, and scheme to defraud—should run consecutively to each other. Kancharla's 7–to–21–year sentence for enterprise corruption along with the sentences for the remaining counts, were to run concurrently.

Thus, the trial court meted out the sentences in a manner such that even if the enterprise corruption convictions were vacated, the defendants would still serve equivalent aggregate terms. As defendants point out, the trial court apparently felt that such sentences were warranted in order to “send a message” to “ ‘the construction industry in New York City [which] over the decades has been rife with corruption.’ ”

In light of our decision to vacate the enterprise corruption convictions, we find that the imposition of consecutive sentences is unduly harsh. “[F]airness of the criminal justice system requires some measure of equality in the sentences meted out to defendants who commit the same or similar crimes” see People v. Schonfeld, 68 A.D.3d 449, 450, 890 N.Y.S.2d 512 [1st Dept. 2009] [internal quotation marks omitted]; People v. Andrews, 176 A.D.2d 530, 574 N.Y.S.2d 719 [1st Dept. 1991],lv. denied79 N.Y.2d 918, 582 N.Y.S.2d 78, 590 N.E.2d 1206 [1992] [although defendant was could be properly sentenced to greater term than those imposed upon codefendants who pled guilty, the concept of proportionality of punishment warranted a reduction of his sentence]; People v. Slobodan, 67 A.D.2d 630, 630, 412 N.Y.S.2d 21, 22 (1st Dept. 1979)(sentence reduced where the difference between defendant's sentence and those of his codefendants who did not go to trial was “so great as to raise serious questions as to whether [defendant was] not being penalized for going to trial”).

Here, in return for his cooperation with the prosecution, codefendant Thumma, who affixed his engineer's stamp to hundreds of mix design reports, received a misdemeanor conviction and a probationary sentence and will likely retain his engineering license. Similarly, codefendant Porter pleaded guilty to a single felony count and was sentenced to probation. The defendants' consecutive sentences for the same or similar crimes, all non-violent class E felonies, are strikingly disproportionate and should be reduced in the interest of justice.

All concur except CATTERSON, J.P. and RICHTER, ABDUS–SALAAM and ROMÁN, JJ. who concur in Part I of a separate memorandum by CATTERSON, J.P.; RICHTER, ABDUS–SALAAM, MANZANET–DANIELS and ROMÁN, JJ. who concur in Part I of a separate memorandum by MANZANET–DANIELS, J.; CATTERSON, J.P. who dissents in part in Part II of his separate memorandum and MANZANET–DANIELS, J. who dissents in part in Part II of her separate memorandum as follows:

CATTERSON, J.P. (concurring in part and dissenting in part).

Part I

In this case involving alleged falsified test and inspection reports for landmark projects in the New York City metropolitan area, we find that defendants' convictions for enterprise corruption were not supported by legally sufficient evidence and were against the weight of the evidence. Relying on pure conjecture bolstered by empty rhetoric, the People failed to produce any evidence that either defendant knew that test results and inspection reports were fabricated, much less that the defendants spearheaded a criminal enterprise.

The record reflects that in 1995, defendant V. Reddy Kancharla joined Testwell Craig, a construction material testing company, as its laboratory director. Kancharla acquired the company three years later, renaming it Testwell Laboratories, Inc. (hereinafter referred to as “ Testwell”). Testwell was considered the preeminent material testing laboratory in the New York area. Both public and private builders relied on its test reports and certifications about the strength of concrete and the quality of steel in structures built in the city.

In October 2008, a New York County grand jury returned an indictment against Testwell, its owner and chief executive officer Kancharla, its vice-president of engineering, defendant Vincent Barone, and several other employees, charging various crimes including enterprise corruption, scheme to defraud and offering a false instrument for filing. The crimes were based on five separate criminal schemes. At issue in this appeal are three schemes involving concrete and steel testing of major, high-profile projects including Yankee Stadium, the Freedom Tower, and Jet Blue facilities at JFK Airport.

Kancharla was charged in connection with the “mix design scheme,” the “steel inspections scheme” and the “certified inspectors” scheme, but not in the “field tests scheme” or the “compressive/flexural strength alternations scheme.” Barone was charged only in the “steel inspections scheme” and “compressive/flexural strength alternations scheme.”

In the “mix design scheme” the People alleged that Testwell, rather than utilizing the “preliminary tests method,” one of three methods authorized by the Building Code to calculate the strength of concrete needed for a project, created a formula believed to meet project specifications, and then used a computer program to generate expected compressive strength tests. Thus, the mix design reports were the product of a computer algorithm, not actual testing. The People contended that Kancharla stamped and signed the improperly-prepared “mix design” reports and urged Testwell's laboratory director, Dr. Kaspal Thumma, to do the same.

In the “compressive/flexural strength alterations scheme” the People alleged that compressive strength test results were altered by Testwell employees before the results were sent out for review, and that Barone authorized changes to certain test results related to one project through faxes sent from his assistant. The People's theory was that the altered test results were designed to eliminate anomalous outcomes so that the projects' engineers would not question the results. At trial, the prosecutionrelied on testimony from Ana Murthy, an employee in the concrete department, and on documents seized from Testwell's offices to identify who altered test results.

The “steel inspections scheme”...