People v. Cioffi

• Decision Date: 17 April 2013
• Parties: The PEOPLE, etc., respondent, v. Jerry CIOFFI, appellant. The People, etc., respondent, v. Jerry Cioffi Services, Inc., appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 971

963 N.Y.S.2d 317

2013 N.Y. Slip Op. 02588

The PEOPLE, etc., respondent,

v.Jerry CIOFFI, appellant.

The People, etc., respondent,

v.Jerry Cioffi Services, Inc., appellant.

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

April 17, 2013.

McMillan Constabile Maker & Perone, LLP, Larchmont, N.Y. (Stewart A. McMillan of counsel), for appellants.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; Louis Levithan on the brief), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

Appeals by the defendants respectively from separate judgments of the County Court, Rockland County (Kelly, J.), both rendered January 18, 2012, convicting each of them of grand larceny in the third degree, upon a jury verdict, and imposing sentences. By decision and order on motion dated February 6, 2012, this Court granted the motion of the appellant Jerry Cioffi to stay execution of the judgment rendered against him pending hearing and determination of his appeal.

ORDERED that the judgments are reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

Contrary to the defendants' contention, count two of the indictment was not jurisdictionally defective, as it cited the applicable statutes and sufficiently tracked the language thereof to afford the defendants fair notice of the charges against them ( seeCPL 200.50[7][a]; People v. Smith, 98 A.D.3d 533, 533–534, 949 N.Y.S.2d 190;People v. Dudley, 289 A.D.2d 503, 503–504, 736 N.Y.S.2d 48).

The defendants' challenge to the legal sufficiency of the evidence presented at trial is unpreserved for appellate review ( seeCPL 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, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendants' guilt of grand larceny in the third degree based upon a violation of Lien Law § 79–a beyond a reasonable doubt ( see People v. Miller, 23 A.D.3d 699, 700–701, 803 N.Y.S.2d 734;People v. Melino, 16 A.D.3d 908, 909–910, 791 N.Y.S.2d 718;People v. Lincoln, 272 A.D.2d 945, 945–946, 709 N.Y.S.2d 279). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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 jury'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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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 defendants contend that the respective judgments of conviction should be vacated due to an alleged conflict of interest of the District Attorney. The contention is unpreserved for appellate review ( see People v. Good, 62 A.D.3d 1041, 1042, 877 N.Y.S.2d 766;People v. Krom, 91 A.D.2d 39, 46–47, 458 N.Y.S.2d 693,affd.61 N.Y.2d 187, 473 N.Y.S.2d 139, 461 N.E.2d 276) and, in any event, is without merit. The defendants failed to establish “ ‘actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence’ ” ( People v. English, 88 N.Y.2d 30, 33–34, 643 N.Y.S.2d 16, 665 N.E.2d 1056, quoting Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522;see People v. Brown, 81 A.D.3d 1305, 1306–1307, 916 N.Y.S.2d 382;People v. Rivera, 27 A.D.3d 489, 490, 812 N.Y.S.2d 575).

However, the defendants correctly contend that the trial court's failure to instruct the jury that the statutory presumption contained in Lien Law § 79–a is permissive violated the defendants' constitutional rights to due process ( see Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344;Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39;People v. McKenzie, 67 N.Y.2d 695, 499 N.Y.S.2d 923, 490 N.E.2d 842). Although the defendants' contention is unpreserved for appellate review ( seeCPL 470.05[2]; People v. McKenzie, 67 N.Y.2d at 697, 499 N.Y.S.2d 923, 490 N.E.2d 842;People v. Torres, 46 A.D.3d 925, 925, 849 N.Y.S.2d 90), we nevertheless review it in the exercise of our interest of justice jurisdiction ( seeCPL 470.15[6][a] ).

Pursuant to Lien Law article 3–A, a contractor who receives funds under a contract for the improvement of real property must hold the funds as a trustee, and if the contractor applies trust funds for any purpose other than the purposes of the trust and fails to pay a trust claim within 31 days of the time it is due, he or she may be guilty of larceny ( seeLien Law §§ 70, 71, 79–a[1][b]; People v. Miller, 23 A.D.3d at 700, 803 N.Y.S.2d 734). The trial court instructed the jury, in accordance with Lien Law § 79–a(3), that “[f]ailure of the trustee to keep books and records required by this section shall be presumptive evidence that the trustee has applied ... trust funds ... for purposes other than a purpose of the trust.” Like all statutory presumptions in New York, the presumption in Lien Law § 79–a(3) is permissive ( see People v. Rosano, 50 N.Y.2d 1013, 1016, 431 N.Y.S.2d 683, 409 N.E.2d 1357;see also Matter of Raquel M., 99 N.Y.2d 92, 95, 752 N.Y.S.2d 268, 782 N.E.2d 64;People v. McKenzie, 67 N.Y.2d at 696, 499 N.Y.S.2d 923, 490 N.E.2d 842). The trial court's failure to instruct the jury that the presumption “was permissive, or to emphasize that, despite the presumption, the same burden of proof remained with the People, ‘was bound to result in misleading the ... jurors into believing that the presumption is conclusive and binding upon them’ ” ( People v. Smith, 23 A.D.3d 415, 416, 804 N.Y.S.2d 774 [citation omitted], quoting People v. Williams, 136 A.D.2d 132, 135–136, 526 N.Y.S.2d 581 [internal quotation marks omitted]; see Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344;Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39). Such a mandatory presumption is unconstitutional, as...