People v. Fonvil

• Citation: 2014 N.Y. Slip Op. 02792,116 A.D.3d 970,984 N.Y.S.2d 116
• Parties: The PEOPLE, etc., respondent, v. Vilair FONVIL, appellant.
• Decision Date: 23 April 2014
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 970

984 N.Y.S.2d 116

2014 N.Y. Slip Op. 02792

The PEOPLE, etc., respondent,

v.Vilair FONVIL, appellant.

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

April 23, 2014.

William A. Gerard, Palisades, N.Y., for appellant.

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar Yeger and Anthony R. Dellicarri of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the County Court, Rockland County (Molea, J.), rendered December 11, 2003, convicting him of misconduct in relation to petitions in violation of Election Law § 17–122(7) (four counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the facts, the consolidated indictment is dismissed, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings consistent with CPL 160.50.

The defendant organized a group of individuals to run for seats on a local Democratic Committee in an effort to gain a majority in that body. During the summer of 2000, the defendant went door-to-door throughout the community and personally collected signatures on a number of designating petitions to which he attested as a subscribing witness. The defendant submitted these designating petitions to the Rockland County Board of Elections on July 13, 2000.

The defendant was subsequently arrested and charged by felony complaint with, inter alia, criminal possession of a forged instrument. A grand jury was impaneled. The defendant sought to testify before the grand jury but was not permitted to do so because he refused to waive “the immunities and privileges” he would otherwise enjoy under the federal and state constitutions and statutory law. After about a week of presentations by an assistant district attorney, which included the testimony by a purported expert in New York State Election Law, the grand jury returned an indictment (01–233) charging the defendant with 32 counts of criminal possession of a forged instrument in the second degree, 3 counts of offering a false instrument for filing in the first degree, and 3 counts of misconduct in relation to petitions in violation of Election Law § 17–122(7). These charges stemmed from three pages of designating petitions that the defendant had signed as a subscribing witness for the 6th election district on June 18, 2000, and June 19, 2000, and the 36th election district on July 9, 2000.

Almost two months later, the grand jury returned a second indictment (01–292) charging the defendant with an additional 37 counts of criminal possession of a forged instrument in the second degree, 4 counts of offering a false instrument for filing in the first degree, and 4 counts of misconduct in relation to a petition in violation of Election Law § 17–122(7). These counts stemmed from an additional four pages of designating petitions that the defendant had signed as a subscribing witness for the 70th election district on July 6, 2000, and July 10, 2000, and the 71st election district on June 16, 2000, and June 30, 2000.

In May 2002, the two indictments were consolidated for trial. The defendant's first trial ended in a mistrial after the People successfully moved to disqualify the defendant's attorney.

After a retrial that continued over the course of about four weeks, the jury returned a verdict. Of the 83 total counts charged, the defendant was convicted of four misdemeanor counts of misconduct in relation to a petition in violation of Election Law § 17–122(7). The jury acquitted the defendant of all 55 felony counts of criminal possession of a forged instrument in the second degree, all 7 felony counts of offering a false instrument for filing in the first degree, and 3 of the 7 misdemeanor counts of misconduct in relation to the petitions. The defendant was subsequently sentenced to a conditional discharge and 100 hours of community service.

On appeal, the defendant contends, inter alia, that the verdicts of guilty on the four misdemeanor counts are against the weight of the evidence. Since we agree that the jury's verdict finding the defendant guilty of four counts of misconduct in relation to a petition was against the weight of the evidence, we reverse.

“Upon [a] defendant's request, the Appellate Division must conduct a weight of the evidence review” and, thus, “a defendant will be given one appellate review of adverse factual findings” ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;see People v. Curry, 112 A.D.3d 843, 844, 976 N.Y.S.2d 571;see also Arthur Karger, Powers of the New York Court of Appeals § 21:1, at 744 [3d ed. rev. 2005] ). If a finding in favor of the defendant would not have been unreasonable, then this Court “must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” ( People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1). “Once this Court conducts such an analysis, it must then decide whether the verdict finding the defendant guilty beyond a reasonable doubt was warranted” ( People v. Curry, 112 A.D.3d at 844, 976 N.Y.S.2d 571). “Essentially,” this Court “sits as a thirteenth juror and decides which facts were proven at trial” ( People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652). If it appears that the fact-finder failed to give the evidence the weight it should be accorded, then this Court may set aside the verdict and dismiss the accusatory instrument or any reversed count ( seeCPL 470.20 [5]; People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902;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).

Here, the defendant was found guilty of counts 9, 30, 43, and 61, as set forth on the verdict sheet which, in connection with the jury instruction, charged the defendant with committing misconduct in relation to certain pages of designating petitions for districts 36, 6, 70, and 71, respectively, on July 13, 2000. As relevant here, “[a]ny...